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Aboriginal Societies and the Common LawA History of Sovereignty, Status, and Self-Determination$

P.G. McHugh

Print publication date: 2004

Print ISBN-13: 9780198252481

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780198252481.001.0001

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An Overview of the Era of Aboriginal Self-Determination: from Rights-Recognition to Rights-Integration and -Management

An Overview of the Era of Aboriginal Self-Determination: from Rights-Recognition to Rights-Integration and -Management

(p.315) 6 An Overview of the Era of Aboriginal Self-Determination: from Rights-Recognition to Rights-Integration and -Management
Aboriginal Societies and the Common Law


Oxford University Press

Abstract and Keywords

This chapter presents an overview of how aboriginal self-determination became the overarching dynamic for legal development in each jurisdiction. It sets out the important legal contours of the last quarter-century, showing how each jurisdiction addressed the legal and constitutional pluralism that this new imperative demanded, and purged the older discredited goal of assimilation.

Keywords:   aborigines, self-determination, jurisdiction, pluralism, Australia, New Zealand


During the 1960s the indigenous peoples of North America and Australasia claimed the right to self-determination inside the constitutional system of the settler-state. This claim, elusive and idealizing, became ever more insistent in the final three decades of the century, acquiring a momentum that generated considerable legal innovation and change, particularly in the 1990s. By the mid-1970s each jurisdiction acknowledged that its indigenous peoples had an inherent right to retain their cultural identity and that their aboriginality somehow (for the extent was usually indeterminate and frequently controversial) enhanced that right. Rather than being de-legitimated by national laws, aboriginal polities now argued—and the settler-state for the most part accepted—that law should be validating their group identity. The era of ‘aboriginal self-determination’1 had begun.

In all jurisdictions legal change started slowly and fitfully. The 1970s and 1980s were years of legal acclimatization during which each jurisdiction bit by bit laid a platform for ‘aboriginal self-determination’ (the modified version that in law-makers’ eyes did not incorporate the secessionist element). Aboriginal self-determination needed legal facilitation and that required the Anglo legal system to revise its assimilationist attitude and negativity. That was a hump all jurisdictions had to cross. Once legal recognition was irreversibly in train—clumsily and awkwardly—there came the more free-wheeling legalism of the post-recognition era. The process of recognition was an uneven one and the legal platforms that took shape had elements of the makeshift and rickety, but by the late 1980s most jurisdictions had experienced a fundamental paradigm shift. By then each jurisdiction had a network of laws and travelled far enough down the road of aboriginal self-determination to make reversal or even deceleration impossible. Much of that legal machinery was vintage, inefficient, and jerry-built, a thing patched and held together by sellotape. Each jurisdiction had its own set of peculiar legal contraptions for the management of aboriginal peoples’ affairs. These (p.316) bumped along the road of self-determination as the need for modernization and more effective legal mechanisms became clear (and embodied in the single term ‘governance’).

As this revision of the laws of status moved beyond recognition to the 1990s’ post-recognition terrain of reconciliation (which included claims settlement), and governance, there was an inrush of legalism into the politics of the reviving aboriginal cultures. Aboriginal self-determination now had a legal momentum that was sometimes so frenetic and fast-paced it became difficult to perceive who—if anyone—was at the wheel. Soon this increasing and in some regards encroaching legalism was affecting the dynamic of aboriginal relations at every level—with governments, other groups, and within themselves. The more self-determining aboriginal groups became—the more actively and vigorously they managed their claims, assets, government programmes, and suchlike—the more legalism thrived. As national laws moved towards a wider accommodation of aboriginal self-determination, they placed new demands and uncorked old stresses in aboriginal culture. As aboriginal people controlled more of their affairs, the legalism around them became more pervasive and uncontrollable. Moving beyond colonialism also re-inscribed some of its enduring features. This paradox became more obvious during the final decade of the twentieth century but it was also inherently irresolvable.

This chapter is an overview of how aboriginal self-determination became the overarching dynamic for legal development in each jurisdiction. It sets out the important legal contours of the last quarter-century, showing how each jurisdiction addressed the legal and constitutional pluralism that this new imperative demanded, and purged the older discredited goal of assimilation. The next chapter will examine in more detail the processes of legal recognition, explaining the means (and convulsions) by which each constitutional system admitted (through its laws of sovereignty and aboriginal status) this new legal presence. That history of the 1970s and 1980s, the crucial years of legal recognition, will enable the subsequent chapters to explain the transition into and features of the bustling post-recognition legalism of the 1990s when reconciliation and governance became new, central themes of legal attention. Those themes were motored primarily by the movement within each jurisdiction towards resolution of land-related claims, a key series of processes described in the final chapter.

The legal developments described in the following chapters occurred, of course, within a broader political setting where factors other than legal—cultural and economic not least—were as, if not more, influential in setting the pace and direction of change for aboriginal peoples. Law both influenced and was influenced by those factors. It is a truism that no area of legal development is a self-contained conversation immune from the pressure of the outside world. However aboriginal affairs became an area where these external pressures were particularly robust. The dynamics of legal change were generated not only by the obvious sources—governments, judges, and aboriginal people themselves (powerful as they grew in confidence and the dark art of political lobbying). There were many non-aboriginal people and sectors of political influence that lacked an opinion on most areas of legal doctrine but found they had strong feelings on aspects of aboriginal rights. The national controversies in Canada, Australia, and New Zealand whipped up by the judicial recognition of common (p.317) law aboriginal title were dramatic examples. Farmers, recreational homeowners, environmentalists, anglers, local chambers of commerce, were amongst those who did not hesitate to express their opinions about aboriginal rights. Most Americans had some view, often a cynical if not hostile one, of Indian gaming. Aboriginal rights attracted considerable controversy in polities that were not used to thinking about tribal peoples in a rights-based way. The accounts of legal change that follow should always be seen as happening inside that robust political environment. The purpose of this chapter is to set out the general legal contours of the era of self-determination in each jurisdiction so that the later chapters can fill in the detail.

* * *

1. Into the era of self-determination

Aboriginal peoples’ claim to a right of ‘self-determination’ was an outcome of their mobilization against the turn towards more active policies of assimilation in national policy-making after World War II. It was augmented by the new international consciousness of peoples’ rights described in the last chapter, in particular the de-colonization and civil rights movements. Although the aboriginal rights movement in each country had its own background and momentum, the same type of threatening governmental policy ignited all. This policy was the logical endpoint of the assimilation policies applied for over a century, as well as a progression from the colour-blind principles of liberal democratic practice. After World War II, the effects of discriminatory laws had been all too plain. Spurred—and horrified—by that experience, western democracies advocated principles of thoroughgoing equality that eliminated special legal protection of minorities. During the early 1950s the implications of that version of equality for aboriginal people were dawning. However, the full, bleaching consequences became most evident in the 1960s and early’70s as aboriginal peoples fought against legal termination. By then governments were regarding the special legal position of aboriginal peoples as contrary to the liberal democratic principle that required equal treatment of a culturally undifferentiated citizenry. The various governments of North America and Australasia, in their different ways, proposed the removal of the legal protection and special status given native peoples. Aboriginal peoples’ blazing repudiation of these attempts sparked their mid-1970s ‘years of anger’. Tooth and nail they opposed intensified assimilation and its aggressive policy of legal termination.

The outcome during that period was a series of national policy reversals entailing official acceptance by the settler-state of ‘aboriginal self-determination’ as the new foundation of relations and law-making. These reversals mostly came during the latter half of the 1970s. In all jurisdictions the principle was vague and unformed at that stage, as indeed it remained for much (if not all) of the history that followed. If anything aboriginal self-determination represented an ideal towards which national practice strove unevenly, fitfully, and patchily and, even then, it was apt to be treated as (or deliberately demoted to become) synonymous with ‘self-management’. Still, its institutional acceptance by the beginning of the 1980s, even in the most diluted version, directed the groundswell of aboriginal energy away from protest and into the (p.318) constitutional fold of policy- and law-making. In that way aboriginal protest became legitimated and the era of self-determination began.

The policy of assimilation was not as all-bad as it tended to be depicted once the era of self-determination was into bumpy stride. Some of its tenets, such as equal citizenship rights (including social welfare and protection from racial discrimination), equality in standards of living, and equal pay for equal work, involved important rights for aboriginal peoples.2 However, it was on the question of land that assimilation held an especially ominous ring in that reserves and special tenurial systems were regarded as an impediment to true equality. These spaces were often the sites of greatest aboriginal deprivation, the persistence of which shamed the settler-state. Yet whilst the condition of aboriginal people on these reservations and other marginalized land was often one of shocking impoverishment, the reservation represented for many (particularly in North America) their last vestige of territorial association. For aboriginal peoples the revival of their culture was inextricably tied to their genealogical identity with land. Australian politicians of the post-war assimilation period noted and spurned that concern with geographical coherence particularly forcefully, seeing Aboriginal land rights as synonymous with segregation. Hasluck proclaimed the assimilation policy (1951) as founded upon the ‘two characteristics of Australian democracy: equality of opportunity’, and the ideal of a ‘society in which there shall be no minorities or special classes’.3

For the indigenous peoples of North America and Australasia, the post-war threat to their special legal status was ridden with irony. They now found themselves defending legal regimes of which their historical experience had been largely negative. The vintage regimes for aboriginal governance erected by the statute law of North America and Australasia represented paternalistic regimes with both positive and negative shielding effects. There had been massive bureaucratic intrusion into their lives, but the ill wind had also blown protectively as something of a shield from the full brunt of the settlerstate's capitalist economy and its transactional, individualist legalism. That ambivalence also became a motivating one for aboriginal activists, encouraging their articulation of alternative legal approaches. They advocated models of aboriginal selfgovernance inside the host common law system and under the mantle of specially protected legal status. The role of the legal system, they said, was not to suppress but to accommodate and encourage aboriginal self-determination.

The models of aboriginal autonomy articulated by indigenous peoples were located in either of two paradigms, each with distinct legal and constitutional implications. The first was one of separate sovereignty derived from or associated with the Marshall trilogy. By this model aboriginal nations retained and exercised their inherent sovereign authority independent of the settler-state government. The second was a model of delegated authority that was associated with the legal regimes already in place. By the (p.319) latter approach aboriginal self-governance arose from the permission of the settler-state, and was not inherent but permitted. Unsurprisingly, aboriginal peoples largely subscribed to the first approach, their radical advocates most vocally. Governments mostly opted for the second. That gap between the proponents of a separate aboriginal sovereignty and those believing in a central, unified sovereign (in Australasia and Canada termed the Crown) became an ideological battleground in the last quarter of the twentieth century. It manifested the bi-polarity noted in the first chapter between a legal history related as the expressions of will emanating from the dominant state institutions and one generated entirely from within aboriginal cultures.

This sovereignty-talk waged in all countries. At the least, its appearance required all legal systems to explain the status of aboriginal peoples in their constitutional scheme of things. One consequence of this in the Anglo-Commonwealth jurisdictions—the one aboriginal activists had calculatedly sought—was to re-animate the very issue which Dicey and the Victorian jurists had believed indisputably settled, namely the character of settler-state sovereignty. This was a discourse familiar to an American polity whose constitutional tradition was based upon the justiciability and limitability of sovereignty under the Constitution, although, even there, Congressional plenary authority over the tribes was never fully gainsaid (except by the tribes and their supporters). Aboriginal claims thus generated a growing sense of constitutional displacement by raising direct questions about the location and nature of sovereignty within the national legal systems. It became apparent during the last two decades of the twentieth century that the older, more complacent notions of constitutional authority were no longer tenable. Aboriginal claims necessitated and generated constitutional revisionism. In the era of self-determination, sovereignty, like status, remained key.

During the 1960s and ’70s, as they reacted against attempts to terminate or diminish their legal status, aboriginal peoples’ stories attracted considerable public attention. They told histories of mistreatment, of undertakings given officially and callously broken. These accounts made a trail of histories that shocked and shamed settler polities committed to the rule of law. These were histories of all scales, epic and domestic, tales of whole peoples displaced and decimated, beside smaller-scale but equally woeful tales of misery, exploitation, and loss. What made those histories so shameful was the fact that the deprivations committed by the settler-state had occurred, indeed often had been engineered, through the rule of law. Law was gravely implicated in those historic processes of deprivation and oppression, and that was a harsh lesson for liberal democratic polities committed to justice not merely in the contemporary world but as an historically-validated phenomenon. One response—the Australian one in the late 1990s where Prime Minister Howard famously refused to apologize for the ‘Stolen Generations’—was to deny that historical momentum to the contemporary sense of justice. But this was a stubborn and rhetorical posture playing to a conservative electorate. In all jurisdictions—Australia (its courts especially) included—the weight of history pushed for greater accommodation of aboriginal peoples inside the rights-place of modern, common law constitutionalism.

In the era of self-determination that effectively commenced in the mid-1970s, aboriginal groups presented themselves before government(s), court, and corporation, demanding fuller account be taken of their presence and claims. As that activity (p.320) increased, it also became more complex. The era began with aboriginal peoples wanting the legal system to recognize their aboriginal claims and status. Of itself and unaccompanied by more sympathetic legal provision, recognition of the right to self-determination accomplished little. The right was rhetorically rather than actually being recognized. The host legal systems needed to convert a hostile legal habitat into a more friendly and facilitative one. Gradually through the 1970s and 1980s the several systems moved from awareness and political avowal of the principle towards its more tangible expression. Those facilitative steps were uneven, often clumsy, and short-sighted in approach, but they became more evident and mostly irreversible. In those two decades legal activity lurched incrementally through statutory change and court judgment generating a new, improvisatory form of legalism as it went. Old law and new law met and often jarred. In the turbulent 1990s the several legal systems’ seams were stretched sometimes to apparent bursting point. One might call the earliest phase a time of ‘recognition’, a period when the legal systems made renewed and revised, though uneven, acknowledgment of the aboriginal presence and entitlement to distinct status. Legal recognition implicitly accepted the principle of aboriginal selfdetermination and the existence of a range of associated rights. Chapter 7 covers that foundational period, calling it the ‘era of recognition’.

That period in which new legal foundations were laid, segued into the frenetic legalism of the 1990s and new century (chapter 8). In the crucial decades of the 1970s and 1980s, as aboriginal peoples sought recognition and facilitation by the legal system of their status and rights, a crude reductionism had been applied to their relations with the state. This tended to depict aboriginal peoples as a monolithic political formation pitted against the government. During the late 1980s, however, and certainly by the 1990s, a more sophisticated form of legal consciousness replaced that crude model. The complexities of aboriginal politics and the variety of relationships involved in the conduct of their affairs became apparent in the multiple fronts of legal activity. Law not only operated in the sphere of aboriginal groups’ relations with the government (which in the federal systems drew in all branches, including more increasingly States and Provinces), but in inter- and intra-group settings as well. Municipalities and the corporate sector were also making contracts routinely with aboriginal nations, friendly consensus-based relations that, like those with other actors, also spilled over into the adversarial.

In that regard the decade 1985–95 was pivotal. In those years the new trellis of legal recognition was mostly (though not always thoroughly) erected in each jurisdiction. The progress—often slow, but tangible nonetheless—towards settlement of aboriginal claims through newly established procedures and mechanisms, demonstrated the national legal systems had accepted and were now processing those claims. This rehabilitation was one factor encouraging the enormous growth in tribal activity during the 1990s. Tribal nations were also contracting to deliver governmental services to their people, especially in North America. Asset re-vestment also brought tribal nations into ventures with the business world, in such areas as tourism and mineral exploitation. With the growth of tribal asset bases that these processes brought, issues of aboriginal ‘governance’ and jurisdiction over resources (especially in the federal systems) became increasingly important. The question was not whether aboriginal peoples were (p.321) self-determining; rather, because they were, the question was how that self-determining activity was to be achieved through law and the extent of it, particularly in relation to control over resources. The focus had moved from the recognition of aboriginal rights, where the fundamental paradigm shift within the legal system had occurred, to the integration and management of those rights inside the legal system.

The how question of ‘governance’ arose because governments insisted that if considerable assets and financial resources in settlement of claims or management of government programmes were to vest in a group, there must be a suitable host legal regime. The corporate sector interested in commercial relations with aboriginal groups also demanded likewise. The antiquated legal regimes of the assimilation era were mostly not up to this task, an incapacity that became more obvious and problematic with the upsurge in aboriginal managerialism in the 1990s. From the government's perspective, a proper regime would not only allow the transparent and accountable management of tribal assets, but it would also constitute the group with clarity. This entailed clear rules for ascertaining membership, and selecting and mandating leadership. The notion of a tribal code is something of a contradiction in terms, yet that is what became required of aboriginal polities in the post-recognition period of the 1990s.

As aboriginal groups became more active actors in national political and economic life, it also became clear that the willingness of the constitutional systems to accommodate them was not an unconditional one. The extent to which they would be allowed self-governance was constitutionally measured. It was not simply a matter of restoring aboriginal governance by dismantling the imposed regimes that left settlerstate bureaucracies with overbearing discretionary authority. Nor was it simply a matter of constructing regimes with membership and leadership codes and with the requisite managerial and financial accountability and transparency, important as governments regarded those. There was also a pervasive belief within the constitutional system of each jurisdiction that the aboriginal group's treatment of its members had to comport with certain minimum standards. Aboriginal self-governance would be tolerated so long as it did not behave discriminatorily towards its own members, and had in place mechanisms to prevent mistreatment and the over-centralization of authority. This meant that aboriginal governance would be subject to an ongoing constitutional audit by the settler-state. This qualification became particularly evident in the North American jurisdictions from the mid-1980s, as the Bill C-31 controversy in Canada revealed.

Questions of resource control became more pronounced trouble-spots during the 1990s, especially in the federal systems where aboriginal governance operated from a land base. In these settings territorial governmental authorities—States, Provinces or municipalities—claimed a competing right to manage certain resources or activity that the aboriginal polity also sought to control. These jurisdictional issues added legal complexity. Some were resolved in court, but also a growing number were being addressed through agreements and protocols between the tribal and governmental bodies.

By the 1990s, then, the centre of legal gravity had progressed from the foundational questions of recognition to the ensuing questions of rights-integration and -management. The legalism of the post-recognition era was built on the incomplete, sometimes shaky (p.322) foundations of the juridical recognition from which it proceeded. Integration of aboriginal rights frequently entailed filling in the detail of earlier legal recognition. This fleshing-out was a contested process that heated and excited the legal systems as much as the initial convulsive act of recognition. Throughout recognition and integration, each legal system remained a highly fragile, excitable place, its lulls no more than rest breaks, its inhabitants in a perpetual state of readiness for legal war. In the world of aboriginal affairs, co-operation and contention were inseparable bedmates.

During the last quarter of the twentieth century aboriginal self-determination moved from principle to practice in an uneven manner, notching some huge successes, burying some dismal failures, and carrying the many that ran somewhere between. Once each legal system had acclimatized to the revamped aboriginal presence, there sprouted a growing cultural realization that the adversarial mode of interaction that had marked the period of recognition was less suitable in the post-recognition world. It was grasped that the recognition of aboriginal rights made during the previous twenty years was a deep-seated change in the legal culture, one to be lived with rather than niggled against and chipped at by the truculence of continuing litigation. That is, governments, bureaucracies, municipalities, and corporations increasingly saw that in the post-recognition period, co-operation with rights-endowed aboriginal parties rather than rights-denying contestation was a better and more realistic option. There was a growing feeling that differences over the extent of (still-unamplified) tribal rights were better agreed by those concerned than left to courts. Rights-integration was best accomplished co-operatively rather than competitively. The courts encouraged this post-recognition theme of ‘reconciliation’. Increasingly they framed judgments that nudged parties towards accommodation, although they worried contrariwise that litigation involving aboriginal interests was coming before them with mounting frequency.

Reconciliation was a motif of aboriginal affairs in the 1990s, particularly in the legal sphere. It aspired to put aboriginal relations with the public and private (corporate especially) constituents of settler society into a consensual, dialogue-based space. During the 1990s agreements between aboriginal groups, governments, and corporations became a regular phenomenon. Although the adversarial manner of engagement could never disappear, it was at least counterbalanced with a more evident awareness of the possibility of co-operative relations. Nonetheless an indispensable condition for reconciliation was the resolution of claims (chapter 9). This occupied the lion's share of aboriginal nations’ attention and effort from the mid-1980s as claims-making and -resolution mechanisms climbed into gear. The dialogue and outcomes generated in that sphere undoubtedly encouraged more consensus-based encounter elsewhere. As the 1990s ended it was also clear that the repair of the regimes of aboriginal governance was another increasingly important element of reconciliation. This constitution-building of tribal nations had elements that were specifically legal, but it also necessitated broader measures of capacity-building.

Reconciliation, it could be said, involved squaring the rights of aboriginal polities with the overriding sovereignty and constitutional values of the settler-state. In that regard it continued the historically-embedded insistence of the settler-state that aboriginal presence would only be officially—as in legally—countenanced on Anglo terms. The era (p.323) of self-determination might have been a significant new direction in settler-state policy- and law-making, but for aboriginal societies it remained essentially the continuation from their earlier history. The colonial condition may have been ameliorated, but aboriginal peoples remained locked inside a history that still kept the onus of adjustment on them. It was the hard reality (and history) from which escape was not possible.

* * *

The following chapters will elaborate those themes. The present chapter (6) describes the reception inside the common law jurisdictions of the principle of aboriginal selfdetermination and the general features of its history in each. The following chapter (7) outlines the various processes of recognition through which each jurisdiction set in place new legal foundations supporting self-determination. Reconciliation and governance became important themes of the post-recognition period that emerged in the mid-1980s and accelerated through the 1990s and new century (chapter 8). The modern histories of claims resolution threw the passage from recognition to the postrecognition concerns of the 1990s into particularly sharp relief (chapter 9). In their late twentieth-century incarnation, the enduring questions of sovereignty and status remained at the heart of legal development. Through the era of self-determination, law both freed and constrained aboriginal peoples. The paradox was that the greater freedom and power they demanded inside the settler-state constitutional system, the more its legalism surrounded them.

2. The United States

The United States was first to propose removal of the remaining special legal protection of aboriginal peoples. The Hoover Commission (1948), appointed to review executive branch reorganization, called for the complete assimilation of the Indians ‘into the mass of the population as full, tax-paying citizens.’4 The report captured a sentiment that had been lurking on Capitol Hill.5 Congress gave New York criminal jurisdiction over all Indians in the state (1948),6 extending that to all civil disputes a year later.7 At the time this legislation, limited to one state without the large territorially-distinct reservations of the western interior, aroused little national controversy. Another bill of 1948 proposed the extension of state jurisdiction over reserves throughout the country, but failed in the Senate after passing the House.8 Meanwhile the Bureau of Indian Affairs (BIA) was moving to discredit the machinery of the IRA, a self-serving tactic that its history of Caesar-like management of Indian affairs encouraged. One Congressman spoke of the federal government's need ‘to get out of the Indian (p.324) business.’9 Dillon Myer was appointed Commissioner of Indian Affairs and actively pushed a BIA policy of moving Indians to the cities and disposing of reservation lands. At this time the BIA was also allegedly meddling in tribal politics, freezing tribal funds to stifle dissent, interfering with tribes’ efforts to obtain legal counsel and refusing to build permanent facilities on reservation land (such as a hospital in Papago country) because it would discourage urbanization.10

However, of the legislation and administrative practices devised after the war, the most dramatic were Public Law 280 and the so-called ‘Termination Act’.11 Both issued in 1953 and reflected the more aggressive policy of assimilation then holding sway in Congress.12

Public Law 280 dealt with the difficult and sensitive issue of state jurisdiction in Indian country. During the 1940s specific legislation had been passed for named reservations, but the 1953 law was general in application, providing a mechanism by which states might assume criminal and civil jurisdiction in Indian country by express legislative enactment. This law was an attempted compromise between wholly abandoning the Indians to the States and maintaining them as federally-protected wards subject only to federal and tribal jurisdiction. It satisfied neither the Indians, highly distrustful of States’ designs on their land and resources, nor the States. Indeed President Eisenhower had signed the bill reluctantly, describing the open-ended grant of State jurisdiction without reference to Indian consent an ‘unChristianlike approach.’13 Legal argument inevitably arose as to the scope of the statute and the jurisdiction assumed by the States. Nonetheless there was a very real law-enforcement issue, as criminal jurisdiction as well as policing on Indian land was irrationally fractionated at the time. The extension of State criminal jurisdiction was not the only possible solution to that problem but it was the cheapest.14 Despite that practical need, however, and like the Termination Act, Public Law 280 had a distinctly assimilationist ring. The refusal of the Supreme Court (1974) to invalidate State legislation asserting partial jurisdiction under the non-consensual provisions of Public Law 280, and its endorsement of checkerboard jurisdictions on reservations, confirmed that view.15 In 1968 it was amended, requiring Indian consent for all further State acquisition of jurisdiction over their land.

The Termination Act was not actually a statute so much as a call by Congress for statutes terminating the status of recognized tribes, so ending their eligibility for federal benefits and services, and legal privileges attending the tribe's residual sovereign status. House Concurrent Resolution 108,16 as it was known, resulted in a sequence of termination statutes:


Major [termination] legislation affecting particular [nations] came out of the second session of the Eighty-third Congress in 1954. Among [the tribes] involved were the comparatively large and wealthy Menominee of Wisconsin and the Klamath of Oregon—both owners of extensive timber resources. Also passed were acts to terminate… the Indians of western Oregon, small Pauite bands in Utah, and the mixed bloods of the Uintah and Ouray Reservations.17 Approved, too, was legislation to transfer administrative responsibility for the Alabama and Coushatta Indians to the state of Texas … Early in the session of the Eighty-fourth Congress, bills were submitted to [terminate] the Wyandotte, Ottawa and Peoria of Oklahoma. These were finally enacted in August of 1956, a month after passage of legislation directing the Colville Confederated Tribes of Washington to come up with a termination plan of their own18 … During the second administration of President Dwight D. Eisenhower, however, Congress enacted only three termination bills relating to specific [tribes] or groups. Affected by this legislation were the Choctaw of Oklahoma, for whom the termination process was never completed, the Catawba of South Carolina, and the Indians of the southern California rancherias.19

Between 1953 and 1958 one hundred and nine tribes were unilaterally ‘terminated’ by Congress. The policy had an immediate ruinous impact on the terminated tribes and sent a shock through Indian country that continued to reverberate in the new century, particularly for those that had suffered it. From that time individual tribal histories became tales of their attempts to regain federal recognition.20 Secretary for the Interior Seaton tried to calm the storm by announcing (1959) that no tribe would be terminated unless it fully understood the programme and consented to it; however several individual processes were already in train.21 It was not until 1962 that termination had effectively—though not completely—ended.22

Alongside termination, Public Law 959 (1956), the ‘Relocation Act’ as it was known, encouraged reservation Indians to move to federally-approved urban centres. The Act offered a ‘relocation’ incentive by meeting moving expenses, the cost of establishing a new residence and a brief period of job training. Movement away from the tribe ended tribal association (although many stayed enrolled), hence the urban Indians no longer remained a federal responsibility. The policy continued until 1980 when the BIA finally closed its urban employment centres.23 However the policy:

… led to a sudden mass exodus of Indians from their reserved territories, with some 35,000 being relocated to such places as Los Angeles, San Francisco, Denver, Phoenix, Minneapolis, (p.326) Seattle, Boston, and Chicago during the years 1957–59 alone. Despite early (and ongoing) indications that the relocation experience was a disaster, both for the individuals involved and for their respective nations, by 1980 ongoing federal pressure had resulted in the ‘migration’ to cities of slightly over half of all American Indians (about 880,000 of the approximately 1.6 million reflected in the 1980 census).

The termination policy sent a clear message that Congress intended to dissolve the tribes by withdrawal of federal services. The Supreme Court endorsed that message in Tee-Hit-Ton Indians (1954) when it held that Congress could cancel certain tribal property rights at its discretion and without compensation.24 This judgment kept tribal governments in a Constitution-free zone. Although the Court of Claims later moderated its impact,25 Tee-Hit-Ton Indians licensed divergent approaches in lower federal courts to questions of tribal sovereignty.26 Two widely publicized decisions in Navajo country reaffirmed the principle of tribal sovereignty and the concomitant exclusion of Constitutional review, holding the First and Fourteenth Amendments as unavailing against the tribes.27 In Williams v Lee (1959)28 the Supreme Court confirmed the absence of State civil jurisdiction on the reservation without any measure under Public Law 280. This meant a State court could not compel payment by an Indian for goods purchased from a non-Indian store on the reservation.

The Navajo decisions excepting tribal governance from Constitutional review prompted a preliminary inquiry by the Senate Subcommittee on Constitutional Rights. That broadened into a fuller inquiry that, in turn, eventuated in the Indian Civil Rights Act (ICRA) (1968). This Act rendered tribal governments subject to a moderated form of Constitutional review and will be discussed more in later chapters.

Indian resistance to the policy of termination and relocation had resulted in some stand-offs and incipient militancy,29 but it was not until the late 1960s that a more radical style and generation burst forth. The militant American Indian Movement (AIM) was founded in 1968, and the next year there began the extended occupation (1969–70) of Alcatraz Island under the banner of a coalition called Indians of All Tribes. A series of other high-profile physical confrontations followed.30

In any event, by the early 1960s government support for termination had begun to wane. President Johnson formally renounced the termination policy in 1968 in an address to Congress entitled ‘The Forgotten American’.31 A message to Congress in (p.327) 1970 by President Nixon confirmed the new era of self-determination. Influenced by the example of the Zuni Pueblo,32 he announced a new direction in federal policy:

Federal termination errs in one direction, Federal paternalism errs in the other. Only by clearly rejecting both of these extremes can we achieve a policy which truly serves the best interests of the Indian people. Self-determination among the Indian people can and must be encouraged without the threat of eventual termination … This, then, must be the goal of any new national policy toward the Indian people: to strengthen the Indian's sense of autonomy without threatening his community. We must assure the Indian that he can assume control of his own life without being separated involuntarily from the tribal group.33

The first gesture by the federal government under this new policy was the return of the Blue Lake Lands to the Taos Pueblo in 1970.34

Successive American Presidents used this rhetoric of self-determination even if their actions, such as federal cost-cutting under the Reagan Administration, compromised it. Congress also displayed an overall willingness during the last quarter of the century to promote Indian self-determination. Extremist elements occasionally reared an abrogationist head, but that intolerant right-wing sentiment cut against a mostly sympathetic grain in Congress. These antagonists of Indian rights beat the drum of equality as a means of dissolving those rights. In 1978, for example, a federal bill was introduced. Disingenuously entitled the ‘Native American Equal Opportunity Bill’, it proposed the abrogation of treaties and the elimination of all special rights and status for Indians.35 Similarly, equal protection claims were brought in the courts against tribes and tribal governance, a phenomenon discussed more fully in the next chapter. Somewhat besieged in the courts during this period, Indians regarded the Supreme Court as an ambivalent and unreliable champion of tribal sovereignty (although there was a more positive disposition towards the Burger than the reviled Rehnquist Court), whereas Congress was viewed more warmly.

Congress passed three important Indian-related statutes during the 1960s. One of these, the ICRA 1968, will be considered more fully later because, more than any other legal measure, it set out the fundamental condition for tribal self-governance. The condition was tribal compliance with basic western constitutional norms. An earlier law of 1966 authorized any recognized Indian tribe to file suit in federal courts without reference to amount for cases based on the Constitution, treaties or other law. The Indian tribe thus obtained a clear capacity to sue and that enabled them to commence proceedings for the vindication of rights (such as hunting and fishing) that the federal government had not pursued satisfactorily. The amendment of Public Law 280 was also made in 1968.

(p.328) The message by President Nixon to Congress in 1970 had affirmed the strengthening of Indian self-government as the central theme of policy. Soon after, the Alaska Native Claims Settlement Act 1971 (ANCSA) was passed. Heralded at the time as a positive breakthrough for aboriginal rights, it later became regarded as a tarnished and highly imperfect settlement. The Indian Self-Determination and Education Assistance Act 1975 and the Child Welfare Act 1978 were the most important statutory manifestations of the course announced in 1970, although there was a raft of other statutory measures improving the provision of federal finance, education, and health facilities. The 1975 Act established what became known as ‘638 contracting,’ by which a tribe contracted to supply federal services to its members. In the midst of that the American Indian Policy Review Commission (1977) released its report recommending the continuation of federal protection and enhancement of tribal government. The Commission had been set up to give a comprehensive report on Indian policy and law.36 One outcome was the re-establishment of the Senate Select Committee on Indian Affairs, which was eventually put on a permanent basis.37

The Reagan and Bush (Senior) Administrations maintained the policy of selfgovernment despite the feeling that the new emphasis upon tribal self-financing had assimilationist tendencies. In keeping with the entrepreneurist Reaganite outlook, the important Congressional legislation of that period concentrated upon the economic development of the reservation land base of the tribes. A series of 1982 statutes dealt with tribal government, tax status, mineral development, and reserve tenure reform.

Of the statutes in the Reagan and Bush years, the Indian Gaming Regulatory Act (IGRA) (1988) was especially notable. It established a Commission to regulate on-reserve gambling.38 Indians were poised to take advantage of their jurisdictional status confirmed by the Supreme Court (1987) to foster on-reserve gaming, a delicious and lucrative as well as literal reversal of historical fortune: Indian tribes now exploited the weakness of non-Indian society for gambling (and imbibing as they went). To open gambling operations a tribe needed federal recognition plus trust lands, qualifications that several eastern as well as western groups met. The dramatic emergence of gambling on reservations intensified the already fraught relations between States and tribes.

Alongside that general legislation came a pattern of special Congressional legislation restoring recognition to individual tribes who had suffered termination. Undoing termination, which entailed lobbying the federal authorities for restoration of recognition, effectively set the political agenda for many tribes through the last quarter of the twentieth century. Histories proliferated in that period of tribal struggles to regain recognized status. Yet despite the disowning of the policy of assimilation, Congress was (p.329) not as freehanded in that process as the rhetoric of self-determination had augured. Many tribes found the process enervating and depleting. In 1978 federal regulations were passed enabling groups to become recognized, and over the next two decades some 150 non-recognized Indian communities commenced the laborious process. In the 1990s that process was complicated, and in some minds, hampered by many of those groups’ obvious designs on obtaining recognition and trust land in order to open casinos.39

South Carolina v Catawba Indian Nation (1985) illustrated the extent of the damage caused by termination and signalled also the future unreliability of the Supreme Court for support. The majority judgment was that the termination statute of 1959 had the incidental effect of applying a South Carolina statute of limitations to the Catawba's pre-existing and long-standing claim to lands the State purported to purchase from the tribe in 1840 in breach of the Nonintercourse Act. The Catawbas had been assured that termination would not affect their claim but in the event the Supreme Court decided otherwise.40 In the Oneida Indian case of the same year the Supreme Court had accepted that limitations did not apply to the Oneida Indians’ claim also under the Nonintercourse Act.41 Their claim, however, was not hampered by termination legislation, which left the odd result that the tribe with the lesser record of dealings with the federal government was in the better legal position. The more trusting tribe was left the worse off.

Tribal governance under the IRA was also amplified during this period, mainly as a result of Congressional pressure. One feature of the IRA constitutions noted in the last chapter was their standard reservation of considerable powers for the Secretary of the Interior. Typically the boilerplate constitutions included ‘a veto power over such tribal actions as the assessment of dues, fees and taxes against nonmembers, the removal of nonmembers from the Indian community, the control of private land sales by members, the enactment of criminal and civil codes, and the appointment of guardians for minors and incompetents.’42 In 1964, as the Termination era was passing, a Senate Subcommittee criticized that practice as not being required by any federal statute but as being derived entirely from the terms of the constitutions themselves.43 The Indian Policy Review Commission (1976) criticized the use of the approval power, noting acerbically the irony of a power generally intended to strengthen tribal governance being ‘now generally regarded by the Indian people as an impediment to their governmental functions.’44

Tribes were entitled to organize and write new constitutions or amend their existing constitutions under the IRA, but until 1986 those powers were caught up in BIA red tape concerning the tribal elections to ratify constitutional change. The Secretary had (p.330) insisted that the approval power of tribal constitutions required him to approve the draft change before it was put to the band. Such pre-election clearance was necessary, it was argued, to prevent the tribe from approving provisions the Secretary would then feel obliged to veto, thus requiring another expensive and time-consuming election.45 That device was successfully challenged by three tribes in the Coyote Valley Band case (1986).46 Amendment of the IRA soon followed (1988).

Alongside Congress the courts also encouraged the revitalization of tribal governance, especially the Supreme Court during the 1970s. However, and as later chapters show, the earlier judicial receptivity turned into growing ambivalence. Williams v Lee (1959) presaged a revised judicial outlook more sympathetic to Indian self-governance. At that time the jurisprudence was sparse although the foundational principles were clear, but through the 1970s it developed, culminating in the Martinez case (1978). This case stimulated Indian self-determination considerably and fostered considerable growth in tribal courts on the reservation. As the tribes’ legal authority was clarified in the courts and its exercise given surer legal footing, tribal land-ownership also grew. It rose by 16 million acres from 1970 to 1992, reversing the trend of dispossession and extending ‘Indian country.’47 By the early 1990s, with Chief Justice Rehnquist at the reins, the Supreme Court was backtracking on Indian sovereignty, as its position on the Alaskan and Hawaiian tribal nations showed. However the revitalization of the previous three decades—to which the Court had undoubtedly contributed, for all its later misgivings—was irreversible.

Congressional legislation of the 1990s, particularly in the Clinton era, was highly supportive of the forward momentum as the President's policy announcements and executive orders made plain. An Executive Order of 2000 re-emphasized the extent to which the Administration, as opposed to the begrudging Supreme Court, understood the legal history motoring its relations with the tribes. The Order reaffirmed the fundamental principle of tribal self-government and the conduct of relations on a government-to-government basis. It enjoined all federal agencies to incorporate full respect for tribal sovereignty into their application of federal statutes, regulations, and programmes, and further instructed them to audit their procedures to ensure each had a meaningful accountability programme for tribal input.48

By the 1990s the challenge for the American legal system had become one of reconciling its own highly individualistic predicates and principles with those of tribal selfdetermination. That dynamic had several institutional settings—the tribes, the Administration, Congress, the States, the federal and State courts—all conditioned by their own internal agendas as well as the politics of multiple institutional engagement. Now that the old policy of forgetfulness had been replaced by a more proactive and (p.331) entrepreneurial tribalism, the increased activity on all those sites generated a considerable increase in law and drove the encounter into the new century.

3. Canada

Canadian Indian policy moved out of its policy of ‘benign neglect’ during the 1960s. The old policy was set in the restrictive mechanisms of the Indian Act, which reduced native life to the complete supervision of federal officials on reservations. The Act had been revised in 1951 when a more proactive approach towards removing the special legal protection of status Indians first appeared. The revision that was passed in 1951 was a highly diluted version of an earlier Bill (Bill 267) that had generated considerable outcry, not least from John Dieffenbaker, for the failure to consult aboriginal leaders.49 Nonetheless the prevalent philosophy remained that of assimilating aboriginal peoples, the new orientation being towards quickening that process. Such measures as the ‘double mother’ rule and compulsory enfranchisement of any Indian woman marrying a non-Indian reflected a legislative aim of whittling down eligibility for status. The revised Act also contained section 88, making Indians subject to provincial laws of general application (though qualified by any treaty rights). At this time there was a ‘growing federal conviction’ (similar in tone to the American view of the States’ position) that the Provinces had an active role to play in achieving the long-term goal of assimilation. The largely unnoticed passage of what later became a controversial provision was undoubtedly intended to draw the Provinces into the administration of Indian affairs.50 In 1961 the Joint Committee of the Senate and House of Commons had recommended the Indian Affairs branch (then a part of the Department of Citizenship and Immigration) speed up the process of integrating Indians into the wider society. In practice, however, Indian policy remained marooned in the century-old policy of contained neglect.51

The first and most important volume of a government-commissioned audit of Indian life (1963–67), the so-called Hawthorn Report, was published in 1966.52 The team pessimistically described the stifling effect of the Indian Act regime on aboriginal lifestyle but noted the unlikelihood of Indians achieving self-reliance in the near future. The report further noted the lack of aboriginal political organization, although it recommended Indian people should be consulted when major legislation affecting their interests was considered.53

(p.332) The Hawthorn Report also explored the philosophy behind Indian special status, coining as a description the term ‘Citizens plus’. The report emphasized the element of choice missing in aboriginal life, whether that meant remaining in their communities or leaving them. But regardless, ‘Indians can and should retain the special privileges of their status while enjoying full participation as provincial and federal citizens.’54 The federal government should not encourage assimilation as this was a matter for Indians themselves, but it should protect their special status and ‘act as a national conscience to see that social and economic equality is achieved between Indians and Whites.’55 Official response to this notion was initially ambivalent56 and by 1969 openly rejected.

During the mid-1960s, as the Hawthorn team was completing its survey, a number of programmes were implemented by Indian Affairs to move Indian policy out of stagnancy, including draft legislation for an Indian Claims Commission. Indian treaty and aboriginal title claims continued to be the most problematic area of government relations with the First Nations. It was plain that little progress on economic and social matters could be made, and certainly Indian support could not be won, unless these claims were satisfactorily addressed. Meanwhile another initiative, the devolution programme, for the first time brought the Provinces into the provision of government services for Indians, and directly foreshadowed the White Paper policy of 1969. As so often in aboriginal policy this was as much a financial as measure of principle, aimed at transferring federal financial responsibilities to the Provinces. Unsurprisingly it floundered, the Provinces torn between acquiring more authority over native peoples and their resources and the cost of doing so.57 The community development programme developed within Indian Affairs tried to encourage Indian self-management, but ran up against ingrained bureaucratic habits, the powerful seniority of Indian ‘agents’ reluctant to shed both their own authority and the disbelief that Indians could ever manage under their own steam.

In 1969 the federal government under Prime Minister Trudeau issued its White Paper on Indian Policy. The paper proposed the structural integration of Indians into Canadian society and the elimination of federal tutelage. Born of Trudeau's ultra-liberal vision of a state under laws which were culturally and ethnically undifferentiating, the White Paper advocated repeal of the Indian Act, removal of the special legal status of Indians, the dismantling of the Department of Indian Affairs, and the extensive involvement of the Provinces in the delivery of social and other services to Indians on and off the reservation. To First Nations its self-description as ‘white’ was no accident. Prime Minister Trudeau explained that the federal government would recognize treaty rights (‘we will try to bring justice in that area and this will mean perhaps the treaties shouldn't go on forever’58) but not aboriginal rights:

But aboriginal rights, this really means saying, ‘We were here before you. You came and you took the land from us and perhaps you cheated us by giving us some worthless things in return (p.333) for vast expanses of land and we want to re-open this question. We want you to preserve our aboriginal rights and to restore them to us.’ And our answer … our answer is ‘no’. If we think of restoring aboriginal rights to the Indians well what about the French who were defeated at the plains of Abraham? Shouldn't we restore rights to them? And what about though the Acadians who were deported—should we compensate them for this? … What about the Japanese Canadians who were so badly treated at the end or during the last war? What can we do to redeem the past?59

Indian reaction against the White Paper was immediate and forceful. The First Nations rejected both the procedure accompanying its preparation and publication, which appeared to neglect completely aboriginal submissions, and the assimilationist philosophy of its content. In their view the Hawthorn Report's description of aboriginal people as ‘Citizens plus’ had become one of ‘Citizens minus.’

At the same time as the government was proposing the elimination of the special legal rights and status of aboriginal peoples, pan-aboriginal movements were forming in Canada. The National Indian Brotherhood was born in 1968 from the National Indian Council, which had been drawn from middle-class and urban Indians. The Council had lacked credibility amongst Indians and its concern with packaging a favourable impression to non-Indians was an older conciliatory approach that did not suit the emergent radicalism of the time.60 By the late 1960s Indian political mobilization was becoming a matter of concern within government, although the vehemence and power with which aboriginal people excoriated the White Paper demonstrated the government's under-estimation of this politicization. In March 1971 Indian Affairs Minister Jean Chrétien delivered a speech widely seen as formally retracting the White Paper.61 It was thus consigned to historical notoriety.

However, though moving from the philosophy of the White Paper, the federal government still refused to countenance any notion of aboriginal rights. That refusal left government and aboriginal peoples in an apparent impasse, the latter alleging rights that the former refused to concede. The stalemate was dramatically shaken by the judgments of the Supreme Court of Canada in the historic Calder case (1973). Until this case there had been limited judicial recognition of aboriginal property rights at common law and under treaty.62 The Nishga'a claim to an aboriginal title over their ancestral lands in northern British Columbia had been a long-standing grievance63 and one that was not to reach settlement until the end of the century. The case turned on a technicality about impleading the Crown but this was largely ignored in the light of the rulings on the substance. The Supreme Court divided evenly on the question of extinguishment of the Nishga'a Nation's common law aboriginal title, although all were agreed that this title existed at common law. That judicial recognition of the common law (p.334) basis of aboriginal title forced the federal government to reverse its policy. Two cases soon after, Baker Lake (1980)64 and Guerin (1984),65 confirmed the Calder case. A federal government committed to the rule of law and a Prime Minister—the one formerly dismissive of common law aboriginal rights—minded to strengthen it (by patriation of the constitution incorporating a Charter of Rights and Freedoms) could not ignore this judicial intervention.

These cases left much unanswered about the character of common law aboriginal rights, in particular the broader associated right to self-government. They signalled however the willingness of courts to usher legal principle into the management of aboriginal relations and the demise of the old approach with its ‘hands-off’ deference to Crown administration. In the years after Calder the judicial formation of doctrine was (it will be seen) a haphazard enterprise, but at least in the 1970s and 1980s what was crucial was simply the judicial willingness itself. That gave an impetus to processes—those of negotiation and consultation—which Calder put in train. Governmental and aboriginal trepidation about the outcome of last-resort litigation drove relations in this period as much as a new-found but still emergent willingness to engage. In 1974 a policy paper entitled ‘Indian-Federal Government Relationships’ was developed by the federal government. Its principles were based on the concept of a partnership between the federal government and First Nations.66 At this time and into the early 1980s the federal government's vision of aboriginal self-determination remained a limited one67 that only gradually became replaced by a broader, more permissive, and constructive outlook. In that regard, the Mackenzie Valley Pipeline Royal Commission (1977) was a milestone. Chaired by Thomas Berger, with whose name the report has since been warmly associated, this report nudged self-determination into official vocabulary.

By the late 1970s Prime Minister Trudeau had put constitutional revision and renewal on the political agenda. The British North America Act 1867, an imperial statute, was patriated as The Constitution Act, 1982. The Act included a Charter of Rights (sections 1 to 34), as well as section 35(1) recognizing the ‘existing’ aboriginal and treaty rights of the First Nations. This moved the goalposts from whether aboriginal rights were recognized by the common law to the question of their constitutional extent, this latter category (constitutional rights) being regarded as a more compendious category than the former.

By the time of constitutional patriation in 1981 Canadian policy had long since moved to a recognition in principle of the right of First Nations to self-determination, although practical movement towards that goal—such as the much-vaunted though never achieved reform of the Indian Act—had been slight. A recognition in principle of aboriginal territorial integrity had been the broader outcome of the Calder case, implying at least a right of self-management (title-associated self-government). However that right, whatever its character, did not reach the Indian bands who had entered treaties and occupied lands ‘reserved for Indians’ under the Indian Act.

(p.335) The issue from the 1980s became whether or not the right to self-government was included in the scope of section 35(1). Section 37 required the holding of a series of constitutional Conferences. The required four were held but with no progress towards specification of the right of self-government. Further elaboration of aboriginal rights in the Constitution itself fell from the agenda until the ultimately unsuccessful Charlottetown Accord (1992). Although not achieving actual constitutional elaboration of aboriginal rights, these Conferences set off a sustained series of institutional engagement involving the federal and provincial governments as well as aboriginal representatives.

Meanwhile, two high level Reports during the 1980s, the Penner (1983) and Coolican68 (1985) Reports, recommended the implementation of measures for aboriginal self-government.69 The former turned the Canadian discourse towards use of that term—‘self-government’—which thereafter came vernacular. It also made a series of recommendations presaging those of the Royal Commission more than a decade later. At the same time the courts were stepping gingerly into the section 35 water and developing a more sophisticated though cautious jurisprudence of aboriginal rights. This case-law was, however, wary of broaching the issue of self-government, seeing that as a ‘political’ rather than legal question.70 That judicial reluctance could be justified whilst the section 37 conferencing continued and revived at Charlottetown (1992), but it lasted long after that failure of political resolution. A landmark case in this period was Sparrow (1990), establishing the justification test for determining the legality of administrative and legislative interferences with aboriginal rights.71 Legally speaking, aboriginal claims thus continued to be pressed during the pre-Charlottetown period at different, though mutually feeding, levels of the courts and constitutional negotiation.

The section 37 process started a momentum that extended through and beyond the failures of Meech Lake (1987) and Charlottetown (1992), though not producing any substantive agreement let alone any clarifying constitutional amendment on the nature of ‘existing aboriginal rights.’ The Charlottetown Accord (1992) contained ‘probably the most specific elaboration in any national constitution of indigenous peoples’ aspirations,72 but was spiked by the subsequent negative referendum result. It had recognized the aboriginal nations as a ‘third order of government’, holding a right of self-government to be realized through a series of specific agreements with each nation. Paradoxically failure at Charlottetown marked the end of the post-patriation decade of (p.336) uncertainty over the right of self-government. The following year the Yukon Umbrella Agreement (1993) was reached, with others following through that decade. These agreements articulated the right through negotiated structures and jurisdictions. In a sense the failure of Charlottetown was a delay rather than a dead-end.

The apparent failure of Charlottetown masked a more crucial educative process generated by the extended period of negotiation and dialogue. As the Provincial leaders became better versed in the character of aboriginal claims, their knee-jerk hostility towards aboriginal claims diminished (without ever disappearing). By the 1990s the Provinces were generally in a more co-operative though still cautious mood towards their aboriginal peoples. Although there were always moments that showed how fragile that new ground was, it was a thaw impossible without the protracted institutional engagement of the 1980s. The British Columbia Treaty Commission founded in 1992 by a Province previously notorious for its resistance became an excellent example of a new willingness to settle aboriginal claims. As ever in politics, that mood blew warm and chilly in what was overall a more hospitable climate.

As the Charlottetown Accord disintegrated, the Royal Commission on Aboriginal Peoples (RCAP) was at the beginning of its lengthy deliberations. In 1993 it released a discussion paper entitled Partners in Confederation, signalling the direction it was headed. It released a massive report in 1996, which to some extent had already been overtaken by events. Nonetheless its clear support for aboriginal self-government oiled processes that by then were well in train. In August 1995 the federal government declared its recognition of the right to self-government as a constitutional aboriginal right.73 It announced its willingness to enter into self-government negotiations and agreements with aboriginal nations. By the end of the century there were eighty negotiating tables. The government published its Gathering Strength response (1998) to the RCAP, re-averring commitment to First Nations self-governance. Indeed, through the 1990s several negotiated models of self-government had appeared: modern and detailed as well as consensual, these made the Indian Act look increasingly decrepit. They will be reviewed in a later chapter. Their appearance demonstrated that self-government had gone from the expression of a rhetorical ideal—the language of claims-time—to a principle that was being implemented, however awkwardly, through specific structures. The Nisga'a Agreement (1999) ended the century as a presage of what might come in the next. But there was a range of other settlements beside the high-profile and controversial. Frequently these incorporated a strong element of Provincial agreement and participation, the British Columbian being good examples. This showed the change in institutional culture that was maturing during the period of abortive constitution-talk of the previous decade. It was at this level—the inter-governmental one—that the most legal progress towards aboriginal self-government was made in the last decade of the twentieth century.

However whilst the federal government recognized the inherent right to selfgovernment, the Supreme Court still declined the invitation to read section 35 in that manner.74 At the end of the century history was repeating itself inversely: whereas (p.337) twenty years before, the Canadian courts had made a reluctant government accept the notion of aboriginal rights, in the late 1990s the government was taking the initiative whilst the courts remained hesitant, indeed clearly reluctant. Where aboriginal peoples were concerned the courts were now in a highly cautious rather than pioneering frame of mind. As if to underline that, in Corbière (1999) the Supreme Court struck down section 77(1) of the Indian Act which prevented off-reserve band members from voting in elections.75 In its 1995 statement of policy the federal government had indicated that all self-government agreements would have to be subject to the Charter of Rights and Freedoms. The Corbière case sent a rush of anxiety through aboriginal circles that their practices would be subject to constitutional review. The Nisga'a Agreement, agreed as Corbière was wending its way through the courts, also reflected aboriginal sensitivity towards the implantation of Charter-values into their systems of governance. The federal government passed regulations to ensure off-reserve members could vote, but the more important outcome of the case was the introduction of Bill C-7 in June 2002 (‘The First Nations Governance Act’). The Bill immediately became controversial for its attempt to impose a boilerplate over Indian governance. In December 2003 Prime Minister Paul Martin announced he would not revive the legislation, leaving it to lapse on the Order Paper. This showed that if the Indian Act was going to be dismantled, it would be brick by brick, one group at a time. The day of uniform governance regimes had surely gone.

4. Australia

Australia had officially adopted a policy of assimilation in 1951, but in practice the more insulating regime of protection (and neglect) remained largely in place.76 The Minister for Territories, Mr Paul Hasluck, had based the policy of assimilation squarely on the liberal democratic principles of equality of opportunity and non-discrimination.77 The policy was reflected in the ‘welfarist’ approach of legislation during the 1950s, particularly for the Commonwealth's administration of the Northern Territory. It was seen in an earlier chapter that this new approach no longer based the protective legal regimes on racial grounds—this being seen as discriminatory—but on the welfare requirements of individuals without reference to race.

The application of the principle of non-discrimination became more aggressive during the 1960s when ‘the formal Commonwealth and State restrictions that denied Aborigines any meaningful status as Australian citizens were slowly abandoned.’78 These legislative changes ‘coincided roughly with the 1967 referendum, a fact that probably explains why the referendum is accorded the status of citizenship maker’79 for Aborigines. A ‘Statement of Policy’ issued by a conference of Commonwealth and state ministers on Aboriginal welfare (1963) showed how Aboriginal policy- and law-making were being conceived in the lead-up to the Commonwealth's acquisition of constitutional (p.338) jurisdiction after the 1967 referendum. The list of ‘Methods of Advancing the Policy’ given in the statement included paragraph ix, ‘[t]he further removal of restrictive and protective legislation.’80

Aboriginal activism began to emerge during the 1960s, including the Lake Tyers protests in Victoria (1963) and what became the symbolically important Aboriginal strike at the Wave Hill station in the Northern Territory (1966).81 The year before, inspired by the civil rights marches in the American South, the first Aboriginal University graduate, Dr Charles Perkins, led a ‘freedom ride’ through rural New South Wales (1965). Another formative event occurred in 1968 when the conservative Liberal Government decided to transfer land on Gove Peninsula, within the Arnhem Land Aboriginal Reserve, to large mining companies. This proposal inflamed Aboriginal peoples. The Yolngu people of Yirrkala had presented two petitions to the Commonwealth in 1963 seeking ownership rights over Gove Peninsula Land. Aboriginal protest won widespread popular support. The decision by Justice Blackburn in Milirrpum v Nabalco Pty (1971) determined against the existence of common law aboriginal title in the Gove Peninsula, although it was later reversed by Mabo (1992). Despite that setback, the Gove Peninsula controversy also led to the erection of an ‘Aboriginal Embassy’ encampment in front of the federal Parliament in Canberra. It fostered the establishment of a pan-Aboriginal network.82 In Parliament the Leader of the Opposition, Gough Whitlam, called upon the Commonwealth to use its new legislative jurisdiction to pursue ‘a policy of equal rights and special privileges’, a formula similar to the Canadian concept of ‘citizens plus’. Equality of opportunity was mere tokenism, he said, when Aboriginal people were so impoverished and lacked real choice.83 In 1972 the Prime Minister William McMahon announced that the old policy of assimilation had gone. The government's policy was that Aborigines would have the equal right ‘to hold effective and respected places within one Australian society’ whilst also being encouraged to preserve and develop their own culture. The same year the Australian Labour Party pledged on the hustings to support Aboriginal land rights and self-determination. Whitlam became Prime Minister and was given the opportunity to put his words into action.

At this time, and as in other jurisdictions, self-determination was being used in a broad and inspecific manner. It was synonymous with a notion of community empowerment and the shift from total control of Aboriginal life by government to the other extreme of handing over control to indigenous communities with limited focus on accountability to government or inside the community itself.84 In a sense selfdetermination was being defined by what it rejected rather than what it entailed. That negative tendency ebbed in the years that followed as the interplay of aboriginal pressure and governmental practice gave it clearer meaning. Yet it never completely disappeared. The suggestion of separatism was clearly an impossible one at all stages, but (p.339) particularly in the post-recognition climate of the 1990s when the Howard Government disowned self-determination.

Meanwhile, newly committed to the policy of self-determination, the just-elected Whitlam Government established the Department of Aboriginal Affairs as well as a National Aboriginal Consultative Committee (NACC). For the first time structures for Aboriginal representation at the national and regional level were being put in place. The Fraser Government conducted a review of the NACC (1976), which it replaced with the National Aboriginal Conference (NAC). Like the NACC it included elected representatives, but unlike the short-lived body it replaced, it quickly became a high-profile advocate of Aboriginal rights. By the mid-1980s with the Hawke Government in power, the NAC was becoming seen as frequently remote from its constituent communities.85 This introduced what would become an ongoing tension in Aboriginal culture about the desirable forms of national representation, a pull between centralized and regionalized approaches. The NACC and NAC had been advisory bodies only and were criticized for not giving Aboriginal people significant decision-making power. In 1987 the Hawke Government announced its intention to establish the Aboriginal and Torres Strait Islanders Commission (ATSIC), the legislation finally being passed in 1989.

During the 1970s and ’80s, debate about Aboriginal policy was being conducted mostly at the level of ‘social justice’.86 This was a more culturally-sensitive reworking of the earlier ‘welfarism’; however it was based ultimately upon perception of Aborigines as holding minority rights. It was not based upon any conception of aboriginality. In that period the Commonwealth and, less obligingly, the States passed legislation outlawing racial discrimination. The Commonwealth took the lead with the Racial Discrimination Act 1975 (Cth), the passage of which had been largely motivated by support for Aborigines.87 Highly significant though this legislation was, it continued the depiction of Aborigines’ rights as based upon principles of non-discrimination rather than aboriginality. That principle became established in Australian law only at the beginning of the 1990s through claims to common-law aboriginal title.

From 1966 State governments had passed legislation giving Aborigines statutory land rights. Founded upon an emergent acceptance of a principle of Aboriginal selfmanagement,88 this legislation mainly concerned land formerly Aboriginal reserves. This legislation established land management regimes based on the trust or an adapted version, known as the land council. Also the legislation failed to recognize Aboriginal rights as co-existing with other tenures, notably pastoral leases, and its already-limited scope did not extend beyond vacant Crown land.89 As a result, Aborigines resorted to the courts. The Milirrpum judgment (1971) was a setback. This case was heard and decided in parallel to the Calder case in Canada, the adverse Australian result high-lighting the delicate tipping of the balance in the Supreme Court of Canada. However, (p.340) Prime Minister Whitlam commissioned Justice Woodward, whose second Report (1974) resulted in the passage of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Rather than adopting a national law that might have been challenged in court by the States, Prime Minister Whitlam saw this as template legislation for the Commonwealth-controlled Northern Territory. The expectation was that the Northern Territory model would eventually be extended to the other States.

One of the most important immediate consequences of this Act was the granting of freehold title to the Aboriginal owners of over 285,000 square kilometres of land that had been reserves.90 By the end of the century the statutory land claim process had resulted in forty-two per cent of Territory land being in Aboriginal control. The Act converted former Aboriginal reserves to Aboriginal land and enabled Aboriginal people to make claims to unalienated Crown land based upon their ‘traditional relationship’. The land was to be vested in Aboriginal trusts for the benefit of all traditional owners under an inalienable freehold title. The Act also established Land Councils with elected Aboriginal representatives. By the end of the century there were four of these, the Northern Land Council (‘NLC’), the Central Land Council (‘CLC’), the Tiwi Land Council, and the Anindilyakawa Land Council. These Councils were established to determine policy and assist Aboriginal people in claiming and managing their land, in protecting sacred sites, and in the management of income received under the 1976 Act.

Whilst the Northern Territory model was taking shape a negotiated land settlement was reached with the Pitjantjatjara people of north-west South Australia. Although Whitlam lost office whilst the legislation was being passed, the new Liberal Government eventually passed settlement legislation (1981) vesting title to a large tract of land in the Aboriginal owners and establishing a Council to govern the land on an enhanced-municipality model.

The Northern Territory model remained the template for the next Labour Government of Prime Minister Bob Hawke, who came to office in 1983 proposing national land rights legislation. A ‘preferred policy’ was eventually produced (1985) but it met with stern resistance from Aboriginal leaders, Labour party members and States (especially Labour-governed Western Australia). In the event the policy was dropped the next year, a ‘failure of governance’91 that precipitated dramatic judicial intervention.

The famous Mabo case (1992)92 reversed Milirrpum. The High Court of Australia rejected the fiction of terra nullius and recognized the common law aboriginal title of the Meriam Islanders and, by unmistakable implication, the continental Aborigines. The court based the common law title upon inter alia the continuity of Aboriginal customary law—at least as regards their property rights—upon the Crown's assumption of territorial sovereignty. Therefore the court accepted the continued viability of Aboriginal political forms in this sphere, recognition, if limited, of their power of self-government.93 The Mabo result was unexpected (at least in Australia; other common law jurisdictions (p.341) were less startled as surprised by its tardiness). The judgments left many points unclear and suggested that Crown grants made after the passage of the Racial Discrimination Act 1975 (Cth) might be void where inconsistent with native title.

The public and professional response to the Mabo case was far from warm and meant that legislation to trim its potential was inevitable despite Aboriginal objection. The Native Title Act 1993 was the outcome.94 However the Act did not deal with the co-existence of native title and pastoral leases. This pressing issue was considered by the High Court in the Wik (1996) case95 when the two were recognized as co-existing at law (as well as in fact). Essentially though not explicitly, this judgment was instructing governments (Commonwealth and State), Aboriginal and affected parties to negotiate a modus vivendi. Despite being passed against Aboriginal objection, the 1993 Act had contemplated a process of negotiation over land subject to a native title claim. The Act set out the statutory ‘right to negotiate’, which by the mid-1990s had excited considerable controversy as well as receiving much legal attention. As it was, the Howard Government showed its impatience with the process of negotiation (which was clouding large areas of land as well as being complicated by extensive cross-claiming). If negotiated co-existence was the coded message of Wik it was one the Howard Government refused to countenance. It took matters in its own hands and passed an amendment (1998) that pruned heavily the scope of native title, spurning the pronouncement by the United Nations Committee on the Elimination of Racial Discrimination (March 1999) that the measure breached international law.96 At the end of the century, then, native title issues were being litigated within the parameters of the statutory framework.

Meanwhile the policy of Aboriginal self-determination had become the language of official policy-making by the 1970s, although at that time it was seen as a form of minority right to cultural integrity.97 Having acquired legislative competence in 1967, the Commonwealth established an Office of Aboriginal Affairs in the Prime Minister's Office. This became the Department of Aboriginal Affairs in 1972, but like the same bureaucracies in North America and New Zealand it became identified with state paternalism. The Fraser Government had resiled slightly from the notion of self-determination, preferring ‘self-management’, but the essential continuity in institutional development and legislation (like the Northern Territory land rights scheme) indicated the gesture was mostly symbolic.98 As part of that momentum, the Aboriginal Councils and Associations Act 1976 (Cth) established a model of municipal self-government with by-law-making powers as well as Aboriginal Corporations. This was a significant progression from the ownership-based model of land councils. It put ‘self-management’ into wider, more engaged contexts that edged more perceptibly towards Aboriginal (p.342) self-determination than Prime Minister Fraser's rhetoric admitted. However the question of regional and national representation remained in an extra-legal zone incompletely filled by the Commonwealth-sponsored NAC. Besides that, during the 1980s all jurisdictions were moving towards the devolved provision of public services to aboriginal peoples managed by their own structures and agencies. The Report of the Royal Commission into Aboriginal Deaths in Custody (1991) described selfdetermination as an evolving concept that encompassed a wide range of ideas. Selfdetermination was distinguished from self-management and required Aboriginal involvement at all levels in the decision-making processes, including policy design as well as service delivery.99 The Council of Australian Governments endorsed that principle the next year (1992) in calling for greater Aboriginal involvement in those areas.100

The Aboriginal and Torres Strait Islanders Commission [ATSIC] Act 1989 was the product of the most extensive consultations ever taken on a single piece of legislation in Australian history (said the then Minister for Aboriginal Affairs101). It was also the second most amended Bill to have passed through the Commonwealth Parliament since Federation. It established a Commission and regional councils to address the gaps in Aboriginal representation apparent from the workings and limited remit of the NAC. Rather than being a governmental body that worked through existing Aboriginal clan-based structures (the North American and New Zealand approach), ATSIC was a completely new structure of representation and co-ordination. It was founded upon dual and essentially western principles of legitimacy—through the ballot box (its Aboriginal constituency) and Parliament (responsibility through a Minister for the expenditure of public funds). This duality proved a structural polarity that quickly blew ATSIC into stormy sea. It was set up as an elective body (seventeen commissioners with two government appointees), with regional councillors and zonal commissioners designed to give effective local, regional, and national representation of Aboriginal interests. Touted as a bold innovation in public administration, ATSIC became something of a lightning rod in the next decade, attracting all manner of electrical storms. The stresses this structure of representation, policy-formation, and service delivery encountered will be discussed more fully later. Early in 2004 the federal government announced that it intended to abolish ATSIC, which the Minister pilloried as a Labour Government innovation that perpetuated ‘apartheid’.102

ATSIC was and remains (though not for much longer) an attempt to establish a structure for the formation of policy and provision of services to Aboriginal people (p.343) anchored in their consent. It was deliberately set between the Government and Aboriginal people as a mechanism of legitimacy. However the unique structure that was chosen disclosed and implicitly acknowledged two fundamental features of Crown sovereignty in Australia. These were, first, the absence of any formal Aboriginal consent to Crown sovereignty by way of treaty, which related, secondly, to the absence of a history of sustained political relations typical of the other jurisdictions. In 1979 the NAC called for a treaty (makarrata) to be made with the country's indigenous peoples, a call that it repeated on several occasions and which ATSIC also took up. This led to the formation of an Aboriginal Treaty Committee but the call, whilst attracting considerable publicity, did not produce any constitutional change. The proposal resurfaced in the late 1980s but a Commonwealth-appointed Commission recommended against it. The proposal however had pitched Aboriginal policy to the constitutional level, that in itself indicating a new, more receptive mindset. The late 1980s and early 1990s (also the time when ATSIC and Mabo were born) represented a period of unusual consciousness of the Aborigines as a missing component in the country's constitutional arrangements. In May 1991 the Report of the Royal Commission into Aboriginal Deaths in Custody supported the concept of a process of reconciliation. The next month, in June, the Labour Government passed the Council for Aboriginal Reconciliation Act with a twenty-five member council (CAR) to work towards reconciliation by the centenary of Australian federation.103 As it was, native title and the Stolen Generations controversy (1997) attracted the most legal attention through that decade, although ATSIC and CAR continued to canvass and press for constitutional recognition. Indeed, native title generated a considerable amount of litigation and represented the area of most extensive juridification during this period. By the late 1990s Indigenous Land Use Agreements (ILUAs) were becoming a regular feature and signalled the arrival of Australia into a post-recognition environment.

In 1996 the highly conservative Government of Prime Minister John Howard was elected to office after a campaign that had pilloried the ‘Aboriginal claims industry’. He kept Aboriginal affairs within his own portfolio and sought to put them back on the old axis of welfarism (social, education, and welfare programmes)—what he called ‘practical reconciliation’—and away from a rights agenda. Backtracking from the policy followed since the early 1970s, he stated publicly that he preferred the term ‘self-management’ to self-determination.104 The Human Rights and Equal Opportunities Commission (HREOC) had been established in 1986 with a particular brief over Aboriginal affairs. In 1993 the Office of Aboriginal and Torres Strait Islander Social Justice Commissioner was created inside HREOC. Social justice—as the title indicated—and native title were made special areas for attention and reporting back. Prime Minister Howard sought to make the former the main focus of (p.344) official attention, although the Commissioner refused to buckle under to the new orientation of Commonwealth policy and became a thorn in the side of the Howard regime. To the government's obvious displeasure there followed a succession of reports by the Commissioner criticizing Australia's failure to meet its international legal obligations.

The Howard Government's defiant amendment of the native title legislation (1998) in response to the Wik judgment was a strong sign of its more ruthless approach to Aboriginal relations. These proposals received unprecedented attention from the United Nations and put the country's relations with the international organization into a state of crisis. The international criticism the Canadian government attracted (1999) for its slow response to the RCAP was nothing to the opprobrium heaped on the Australian in the same year for its lightning reaction to Wik.105 Internationally the Australian government scoffed at ‘the politics of symbolism’ in relations with Aboriginal peoples and in true Ocker fashion congratulated itself on ‘practical measures leading to practical results.’106 It renounced the policy of ‘selfdetermination’ as encouraging separatism, further dimming Australia's international reputation.

When proposals for constitutional accommodation of Aboriginal people emerged from the national Constitutional Convention (1998) it was in the form of a preamble to the Constitution.107 Prime Minister Howard put his revised version of a draft preamble to referendum on 6 November 1999. It recited the commitment of the Australian people to the Constitution, while, among other things, ‘honouring Aborigines and Torres Strait Islanders, the nation's first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country.’ That gesture of recognition was disingenuously qualified by another clause that sought to make the preamble non-justiciable. As it happened, the referendum (for other reasons) did not endorse the proposal. However the plentiful native title litigation in that decade and Howard's controversial attempts to prune its reach showed the futility of his goal of returning to the old terms of engagement. Aboriginal affairs could not be treated as simply a matter of welfarism.

The Final Report of the CAR, which had long pushed for the constitutional accommodation the Prime Minister resisted, included a draft Reconciliation Bill (2001) to establish processes ‘to identify, monitor, negotiate and resolve unresolved issues for reconciliation.’ Senator Ridgeway introduced a Bill that year but it was not debated for another two and a half years, and then only for a short, truncated period. Even so, the Government made it plain that it was interested only in ‘practical’ reconciliation and not ‘symbolic’ gestures. Its vision of reconciliation was framed entirely in terms of (p.345) equality and non-discrimination rather than any recognition of the inherent authority of Aboriginal polities (such as that made in the other jurisdictions). Senator Ferris said:

Of course, the concept of reconciliation is one that means different things to different people… But there is one common thread to people's view of reconciliation in this country and that is that all Australians are entitled to equal life chances, to equality of opportunity, and that true reconciliation will not exist until Indigenous disadvantage has been eliminated. … The federal government believes that the best way it can act to achieve reconciliation is through the provision of practical and effective measures that address the legacy of profound economic and social disadvantage that are experienced by many Indigenous Australians, particularly in those crucial areas of health, education, housing and employment. Practical measures in these key areas have a positive effect on the everyday lives of Indigenous Australians.108

Once the Olympic Games were over and international attention had passed, the Prime Minister dropped Aboriginal affairs from his portfolio. This step confirmed the cynical impression that his assumption of the helm had been to steer his Government (and sport-obsessed electorate) into clear water rather than make substantive progress.

Yet the Australian picture at the end of the 1990s was not as negative as that might suggest, although the position of Aboriginal peoples had not improved and in some areas had regressed.109 The late 1990s saw the emergence in Australia of concepts that had taken root in other jurisdictions to revive indigenous structures of authority, such as ‘partnership’ and ‘capacity building’. Led by the Commonwealth, the Council of Australian Governments (COAG) issued a communiqué in November 2000 in which it agreed to take a leading role in driving change to address Indigenous disadvantage. Three priority areas were identified110 and in 2002 COAG initiated ‘whole of government community’ trials111 with an independent annual reporting framework on key indicators of Aboriginal disadvantage. These COAG schemes were concerned largely with service delivery. Yet it was sign of an increasingly more frequent phenomenon in which governments entered into agreements with Aboriginal communities and organizations.112 Indigenous Land Use Agreements under the native title legislation were also becoming more regular by the early new century. To use the term of the Howard Government, this emergent pattern of agreement-making indicated ‘practical’ acceptance and movement towards facilitation of Aboriginal enterprise. However, that trend should be set beside the abolition of ATSIC as an ‘apartheid’ body (2004) and the general hostility of the Howard Government to Aboriginal ‘self-determination’ and land rights. This meant that Aboriginal communities were dealt with on an issues-led basis that failed to address their (p.346) overall constitutional and legal position in the manner that American and Canadian law had done. That, of course, was exactly the containing outcome wanted by the Howard Government, for it prevented the Aboriginal nations from claiming inherent authority and law-making capacity within the Australian constitutional system apart from that specifically recognized. That capacity, it will be seen in the following chapters, was conferred niggardly by legislation and largely limited to municipal-like authority and ordinary contractual powers. In Australia the inherency position still had no legal purchase at the beginning of the twenty-first century for all the talk of ‘reconciliation’, whereas the other jurisdictions accepted and acted on it.

5. New Zealand113

By the beginning of the twentieth century the individualization of customary land had poured Maori land-ownership into a mould where the imposed legalism of the tenancy in common mixed with tikanga (custom). As so often in Maori culture, the imposed legalism was incorporated and subordinated to the customary practices. As a result massive fragmentation affected Maori freehold land titles. The state of Maori freehold title underlined how iwi and hapu operated by force of highly dynamic customary practices outside the compass of any totalizing legal regime. The proprietary regime of the tenancy in common was never as all-encompassing as that surrounding the American tribe under the IRA, the band of Canada's Indian Act (itself a fragment of the larger tribal nation), or the smothering Australian Aboriginal protection laws. Individualization had aimed to dissolve those tribal structures. Whilst it undoubtedly had a weakening effect, those structures remained rooted in Maori not Pakeha legalism and so they remained viable, absorbing the new legal form of ownership into their customary practices. At the beginning of the century James Carroll had obtained considerable Maori support for the Maori Councils Act 1900, but this limited system of district regulation had been left behind by post-war urbanization taking most Maori away from their traditional region. Importantly neither iwi nor hapu had been bounded by a legal regime as of the North American manner so that the legal forms (mostly of land-ownership) played inside a dynamic customary framework brokered through a new institution, the Native (later Maori) Land Court.

At the beginning of the twentieth century, the fragmented tenancy-in-common was the central land-based legal vehicle for Maori collective action. During this century Maori incorporations and Trust Boards were also established for the management of assets. Maori incorporations, like the fragmented tenancy-in-common of Maori freehold land, were under the statutory jurisdiction of the Maori Land Court. The principal legislation for Maori affairs was consolidated in 1953, long before any notion of aboriginal selfdetermination held sway. It was not replaced until 1993, by which time it certainly did.

Trust Boards were set up individually by special statute mostly in the inter-war period. They were founded on an iwi basis mainly to administer insubstantial sums awarded to Maori ostensibly in settlement of claims. These Trust Boards were all put (p.347) under a uniform code in 1955 which maintained, indeed in some respects increased, their subjection to Ministerial supervision. Although several Trust Boards assumed powerful leadership roles in their iwi, they never became the encompassing mechanism for the conduct of tribal life in the manner of the North American legal regimes. They existed within or alongside (rather than supplanted) the customary structures of political authority. The laws of Maori freehold land (fragmented title, trusts, and incorporations) and Maori Trust Boards remained the basic legal machinery for Maori collective activity throughout the twentieth century. To repeat, those legal forms were encompassed within a dynamic customary framework, a location that explained much of their individual histories. For the most part, Pakeha legalism was a trellis, shaping but not confining Maori political practice.

The Hunn Report of 1960, an official policy audit of the Department of Maori Affairs in character not unlike Canada's Hawthorn Report, had assumed that Maori would ultimately be assimilated into the white population. Hunn had spoken of ‘integration’ as distinct from assimilation, implicitly contemplating a time when Pakeha and Maori identities would fuse (assimilation) but meanwhile enjoying equal citizenship inside distinct cultural practices (integration). Somewhat misunderstood and not helped by his own confusing and, at times, confused terminology,114 the document was criticized in many Maori quarters115 as assimilationist propaganda.116 Still, its very confusion was symptomatic of government policy of the time, demonstrating the rather vague belief that some merging process was at work and that Maori-ness was destined, if not to disappear, at least to dilute.

The Maori Welfare Act 1962 was in part an outcome of the Hunn Report. It superseded the limping 1945 legislation. The National Government proposed a structure of national and regional Maori representation through a system of district councils topped by a national one. These councils would overlay the reconstituted local and executive tribal committees of the 1945 system. These districts cut across the traditional rohe (tribal zones), but gave the highly dynamic Maori politics a new forum and, importantly, a formal network of representation that encouraged a more national form of information-sharing and political positioning. The New Zealand Maori Council was thus born. Its representative function became particularly important in the mid1980s when the tidal wave of recognition washed through the New Zealand legal system. The Maori Council led the litigation that fundamentally changed the terms of governmental engagement with Maori. Again, the 1962 statute established legal forms that fitted inside rather than apart from the natural, highly fluid customary processes of Maori politics. In part the Council had been born from the conservative National Government's impatience with the Ratana-Labour mortgage on the Maori seats in Parliament. However, as was stressed at the time to an Opposition that was mostly supporting the measure, this form of representation was intended to operate in the extra-Parliamentary sphere.117

(p.348) Meanwhile Maori resorted to the courts during the 1950s and ’60s to vindicate their rights, but their fortune was even less than that of the Canadian First Nations then also following a similar trail. Maori had consistently claimed customary ownership of lakes, the foreshore, and tidal land. The Maori claim to the Wanganui River formally commenced in 1938 when an application was filed in the Maori Land Court to have the customary title to the riverbed investigated so that a freehold order could issue. The case reached the Court of Appeal twice, both times unsuccessfully. The court (1955 and 1962118) maintained the judiciary's long-standing hands-off approach to Maori issues. Failure there did not deter a similar claim to the foreshore of the Ninety Mile Beach, which, again, the court rejected (1963).119

Frustrated by the courts and becoming more organized nationally (in part a result of the 1962 structure), Maori protest took more public and vocal form later in the 1960s. The Prichard-Waetford Committee Report of 1966 recommended the removal of some important statutory protections of Maori freehold land, ostensibly under a policy of equality of treatment. These recommendations were incorporated into the controversial Maori Affairs Amendment Act 1967. This Act was passed by the conservative National Party Government, which had taken up the Committee's theme of removing special protective legislation. In the debates on the Bill, the sponsoring Minister, John Hanan, identified the goal of assimilation behind the legislation. It was, he said, ‘the most far-reaching and progressive reform of the Maori land laws this century … based upon the proposition that the Maori is the equal of the European … This Bill removes many of the barriers dividing our two people.’120

The 1967 legislation sparked protest and encouraged the emergence of new activist groups (such as the radical Maori youth group Nga Tamatoa), as well as generating more effective pan-Maori networks. In 1974 the third Labour Government passed legislation undoing some of the more drastic measures of the 1967 statute. A Maori politician, Matiu Rata, the Minister for Maori Affairs, sponsored this legislation, which endorsed the principle of retaining Maori land in Maori ownership. However, it could not stop the momentum of protest. In 1975 a famous Land March walked from Te Hapua at the extreme north of the North Island to Wellington, the capital city at the extreme south. This dramatic mass gesture was modelled on the ‘Trail of Broken Treaties’ which had marched on Washington DC in 1972. Maori spoke now of the importance of practising te taha Maori (the particular traits and ways of being Maori). Further high-profile claims and confrontations during the mid-1970s, at Bastion Point and the Raglan Golf Club in particular, gave Maori protest continued momentum.121

The call for Maori self-determination made by the Land March protesters was a policy which the third Labour Government had already endorsed in legislation the year before and which was by then official government policy. It was based upon the recognition of te tino rangatiratanga (the authority of Maori chiefs over their own (p.349) people) in the Maori version of the Treaty of Waitangi. The Waitangi Tribunal was established in 1975 to hear Maori claims against contemporary governmental conduct,122 its jurisdiction being extended in 1985 to include historical claims.123 After a hesitant start124 the Tribunal went on in the mid-1980s to deliver a set of influential reports. The favourable national attention they won was a result of the careful and measured tone taken by Chief Judge Durie, the Chairman. The pre-1985 Tribunal was clearly hampered by its non-retrospective jurisdiction as many contemporary issues—like the installation of sewage outfalls into sacred waters—had deep-seated historical roots. Once the Tribunal obtained historical claims jurisdiction in 1985, the number of lodged claims surged considerably. The Tribunal later produced a multi-volume Report (1991) on the first claim under its enlarged jurisdiction, the huge South Island claim of Ngai Tahu. This Report laid the foundation for eventual settlement (1995).

At this time when the Tribunal's jurisdiction had recently been extended, the Royal Commission on Electoral Reform (1986) recommended that the New Zealand political system address the constitutional position of Maori under the Treaty.125 The Commission was echoing the proposal of the new (fourth) Labour Government in a White Paper (1985) for the Treaty to be made part of the ‘supreme law’ of the country. In calling for constitutional reform, the Minister of Justice, Geoffrey Palmer, was openly influenced by the recent Canadian example.126 However, the statute that eventuated in 1990 fell short of an overriding constitutional instrument of the North American variety and omitted provision for the Treaty, Maori feeling (misguidedly) that statutory acknowldgment would diminish its mana.

Meanwhile, as the Tribunal was on the threshold of its enlarged jurisdiction, its early 1980s reports (under its original jurisdiction) had begun evolving a set of ‘Treaty principles’ for the conditions of modern New Zealand. Soon after the Court of Appeal endorsed those principles and added its own spin in the Maori Council series of cases (1987–90).127 Parliamentary reference to ‘principles’ rather than ‘terms’ of the Treaty, the court explained, was to be:

… understood in the light of the fundamental concepts underlying them. [This] calls for an assessment of the relationship the parties hoped to create by and reflect in that Document, and an enquiry into the benefits and obligations involved in applying its language in today's changed conditions and expectations in light of that relationship.128

The court indicated that the Treaty was founded upon the Crown's protection of rangatiratanga in exchange for the acquisition of sovereignty over their territory. The Treaty created a partnership that required both parties to act reasonably and in good faith. The Crown had the freedom to govern and the Treaty did not authorize (p.350) ‘unreasonable restrictions on the right of a duly elected Government to follow its chosen policy’.129 Maori also owed a duty of reasonable co-operation, since the obligations under the Treaty were not ‘one-sided’.130 However as sovereign the Crown assumed a duty of active protection and the obligation to remedy past breaches. The court rejected an open-ended duty to consult.131 Good faith did not require it, although it was ‘an obvious way of demonstrating its existence’.132

The Maori Council cases had been prompted by the proposed creation of stateowned enterprises as a prelude to the eventual privatization of Crown assets. Maori expressed considerable anxiety that the divestment of Crown assets would compromise the availability of resources for settlement of claims that the Waitangi Tribunal was about to consider under its recently extended jurisdiction. At the last moment, after intervention by the Waitangi Tribunal, section 9 was inserted into the enabling legislation, the State Enterprises Act 1986. This section subjected the state enterprises regime to the ‘principles of the Treaty of Waitangi’. The government was surprised when the Court of Appeal interpreted section 9 as requiring the Crown to negotiate an accommodation with Maori before corporatization could proceed. A series of judgments showed the court would not condone Crown measures that read down or sidestepped the reach of section 9. The result was unprecedented. Provision for Maori claims had to be agreed and incorporated into the administration of a statute designed to implement flagship economic policy. In the several judgments the Court of Appeal spoke of the Treaty as a founding document and its principles as subject to ongoing interpretation in the light of modern circumstances. Those principles were further endorsed in the ‘April Report’ of the Royal Commission on Social Policy (1988).133

Faced with this new wave of Treaty-based legalism, the fourth Labour Government announced the ‘Principles for Crown Action’ (1989) that henceforth would govern its relations with Maori, especially in what had quickly become the dominating topic of claims. These included the rangatiratanga (article 2) principle, which included ‘the restoration of iwi self-management’. There was also the kawanatanga (article 3) principle, which was described as the Crown's ‘sovereignty … qualified by the promise to accord the Maori interests … an appropriate priority.’ Other principles included the principles of equality before the law, co-operation and redress. The government described the direction of the claims process. So long as the Crown ‘demonstrates commitment to this process of redress then it will expect reconciliation to result.’134

At the same time the government was looking at service delivery of social welfare and other programmes for Maori. The ‘devolution’ of these services to tribal and other groups became government policy, which called for the direct inclusion of Maori in the design and delivery of programmes and services.135 The State Sector Act 1988 required (p.351) CEOs to recognize the aims and aspirations of Maori and the need for their greater involvement in the public sector. The Partnership Perspectives (1988) echoed the fresh language of the Court of Appeal, the Minister of Maori Affairs noting that mainstream governmental institutions had no familiarity or relationships with Maori communities. It advocated ‘mainstreaming’ and devolving service delivery, stressing the continued strength of Maori tribalism:

Maori signatories to the Treaty of Waitangi represented a specific iwi or hapu. The strength of the traditional iwi structure is reflected in their continuing existence today. They are strong, enduring, sophisticated systems of co-operation and community effort and as such it has been advocated that they provide an appropriate means of delivering government programmes to Maori people.136

As a result the Ministry of Maori Affairs was restructured and the Iwi Transition Authority set up to oversee the formation of Runanga Iwi, statutorily chartered tribal bodies with the requisite contracting capability.

By the late 1980s it was also clear that settlements with Maori would eventually ensue even though at that time none had been reached. By then the powerful Tainui confederation of the central North Island, sidestepping the Tribunal, had begun direct negotiation with the Crown. Faced with a Tribunal deluged with claims and a wide range of claimants, more (though not all) of them likely to follow the Tainui route, the government decided not only to set out the principles for its action but also sought to bring uniformity to the status of claimants. The Runanga Iwi legislation (1990) was thus born from the prospective demands of both the devolution and claims-settlement processes. It was deeply unpopular with Maori who saw it as a reversal of the longstanding relationship they had engineered between custom and legalism. The shortlived Act constituted iwi into statutory form with authorized voices, executive bodies, and constitutional processes for mandate and representation. This was a totalizing regime that, Maori felt, smothered their customary and highly fluid political forms with Pakeha legalism. The Act subordinated and suppressed their fluid political processes. These had displayed considerable historical ingenuity in habilitating particular and less all-encompassing legal forms into the customary realm, but here they were encased in an inflexible and domineering legal mode over which their control was slight. However much the Act provided for constitution building and the like from the ‘ground up’, that still occurred under the confining and defining roof of Pakeha legalism. The new National (conservative) Government (1990) of Prime Minister Bolger quickly repealed it.

The Bolger Government inherited a lusty Treaty-claims process that had exploded into the New Zealand constitutional system with sudden unstoppable force. It reviewed Maori policy in the Ka Awatea (‘it is dawn’) Report (1991).137 As a result Te Puni Kokiri (TPK) was established, replacing the Ministry of Maori Affairs and Iwi Transition Authority (the latter associated with the repealed Runanga Iwi Act). The report recommended the continued use of Crown-approved iwi for social service delivery.

(p.352) It also endorsed the shift towards mainstreaming, meaning that all government departments were to provide culturally-responsive services for Maori with TPK facilitating Maori economic development. The report dwelt not only on claims resolution and Maori unhappiness with progress under the (deposed) Labour Government, but education, health, and social services. This report was associated with the flak-attracting Minister for Maori Affairs, Winston Peters, who was dismissed from Cabinet in October 1991.

In 1992 the National Government made the first modern claims settlement, the pan-Maori sea fisheries settlement. By then Cabinet had agreed a ‘full and final’ settlement policy, but that was not announced until 1994. The Tainui (1994) and Ngai Tahu (1995) settlements, both of which were accompanied by a Crown apology, followed the sea fisheries. Legislation effecting these settlements reconstituted the claimant iwi into new forms, leaving behind the Trust Board regime that had driven and managed the claim. These settlements generated considerable dissension within and between iwi and came before the courts constantly in the next decade. Other claims were also being settled by the end of the 1990s through the Office of Treaty Settlements, established in 1995. The ructions accompanying these signalled a future as troubled as that of the settlements already in place. This spectre, one where Maori processes were unable to contain inter- and intra iwi disputation, became one of increasing anxiety early in the new century. Essentially Maori were experiencing issues of governance similar to those facing tribal groups in other jurisdictions. These were surfacing at the pre- and post-settlement stages.

Meanwhile the National Government felt that it had to cork the flood of claims in order to sell the Treaty settlement process to the wider electorate. Its proposals of December 1994 were less a statement of principle in the 1989 style than a unilateral setting out of the terms upon which it would proceed. By these principles the Crown acknowledged historical injustices and committed itself to resolving them within a tenyear timeframe in a manner that was consistent and equitable between claimant groups, and which took into account fiscal and economic constraints and the ability of the Crown to pay compensation. Mindful of the latter, the government announced the unilateral imposition of a $NZ 1,000 million cap (or ‘fiscal envelope’) on the claims process.138 Maori vehemently rejected the policy, which the government restated in the 1995 Budget, although it became progressively less emphasized and eventually fell to the wayside. The new Labour-Alliance Government (1999) announced the envelope had died, although in other respects the 1994 principles remained.

The claims processes dominated the attention of Maori politics, but legal activity was also occurring on other fronts during the 1990s and lifetime of the Bolger Government. The Resource Management Act 1991 included tangata whenua provisions that gave Maori a voice in the statutory scheme. These consultation provisions became much litigated in the next decade. A Maori Affairs Bill had been introduced in Parliament in 1978, providing for the reform of Maori land tenure to make it more compatible with principles of tino rangatiratanga. However it was not until the passage (p.353) of the Maori Land Act 1993 (also known as Te Ture Whenua Maori Act) that the overdue reforms were made. In particular the Act strengthened the machinery for the creation of tikanga trusts over Maori freehold land to correct the problems stemming from excessive fragmentation of title.

By the late 1990s, with the twin-tracked settlement processes at full steam, there was growing concern about the dominance of claims resolution. A series of essays (Living Relationships) published by the Ministry of Justice (1998) commented on the orientation of the claims process towards a once-and-for-all result—burying the claim—rather than reconstructing an ongoing Treaty relationship between Crown and Maori. Little attention was being given to how the Crown's relations with Maori would operate once the immediate issue had gone. Instead, the essays indicated, the result-oriented process was concentrating on closure and the illusion of exit.139 There was some associated anxiety that claims settlement was fortifying the authority of the iwi at cost to dynamic selfdetermining identity practices inside hapu 140 and urban non whakapapa groups (also claiming aboriginal identity). There was a strong suggestion from within Maori circles that the benefit of settlements was not reaching those who had been most drastically affected by colonialism—the impoverished urban dwellers. The dispute over the allocation of income from the fisheries settlement fuelled that suspicion and required iwi to demonstrate their concern for their urban kin outside the traditional takiwa (tribal realm). Extra-territoriality thus became an explicit theme for iwi consideration.

Renewed militancy, in part sparked by the fiscal envelope proposal, was also a feature of the late 1990s. Numerous confrontations redolent of the mid-1970s occurred, especially the Motua Gardens controversy that seemed for a long while only to escalate.

Another influential paper, this one by TPK (1998), spoke of the need ‘to make significant progress towards developing policies and processes that lead towards closing the economic and social gaps between Maori and non-Maori’.141 The TPK post-election briefing to the incoming Labour-Alliance Government (1999) reported the progress on Treaty settlements and Tribunal hearings and the ongoing problems of mandate and representation that were spilling over into court and dragging the claims resolution processes. It also reported little progress on ‘closing the gaps.’ In February the next year a policy announcement was made, setting out a strategy centralized under a Closing the Gaps Committee with the Prime Minister in the chair. TPK was charged with monitoring and developing capacity-building, which was receiving greater attention in the light of the experience in the previous decade with two internal directorates (social development and economic development). The Cabinet Committee was terminated in 2001 and replaced by a new Social Equity Committee chaired by the Social Services and Employment Minister.

The policy of the fifth Labour Government was to integrate the Treaty into wider policies and programmes of social justice whilst maintaining the claims resolution (p.354) processes in train for over a decade. In doing so, it aimed to keep Treaty principles prominent and gave TPK the specific brief of monitoring outcomes. There was no wish to make Maori affairs a matter of ‘welfarism’ or to suppress aboriginality into broader notions of minority. Also, ongoing Maori litigation and disputation in the claims settlement arena brought their customary political practices onto the national stage in a more overt and highly intensified form. This was a post-recognition pattern similar to that in North America and (nascently) Australia. In 2000 the Minister for Treaty Negotiations, Margaret Wilson, responded by rejigging the 1994 set of principles. Newer principles of fairness of treatment between claims and transparency in negotiation and administration of the settlement joined the earlier ones, revealing the governance concerns that had surfaced during the 1990s.142 As in the other jurisdictions, concern about aboriginal governance indicated that the legal system had moved beyond the recognition of the right to self-determination to the more thorny territory of giving it specific legal form. Dressed as tino rangatiratanga, the principle of self-determination was not itself contested and had long been ingrained in government policy. In the post-recognition habitat of the 1990s, the legal system's task was to give expression to the principle, the pursuit of which in particular cases and settings might be approached—and contested—in a number of ways.

6. The era of self-determination

(a) Self-determination in the period of recognition (1970s and ’80s)

The resurgence of native political activism and rise in settler-state consciousness fed substantive legal development in the final quarter of the twentieth century. As the above survey showed, in all the jurisdictions this ‘renaissance’ was triggered largely by government proposals to remove the special legal rights and status of aboriginal peoples. This threat of legal ‘disappearance’ required the aboriginal peoples to articulate a counter-policy predicated upon the retention and legal recognition—indeed the provision of mechanisms for the enhancement—of their aboriginality. This movement also drew inspiration at an international level from the civil rights and decolonization movements of the same period. The 1960s and early 1970s were watershed years. They were the high tide of legal liberalism where the application of thoroughgoing notions of ‘equality’ would have marked the final annihilation of aboriginal status. The potency of the aboriginal response marked the beginning of a new era, one to be characterized by a greater recourse to law (as well as militancy). The real equality being sought by native peoples was not in their relations and standing amongst the general populace but in their dealings with the government. They sought strengthened political, legal, and constitutional recognition of their distinct status rather than its removal. The old liberal agenda of equality had been turned on its head: aboriginal peoples demanded equality pitched at the highest level—the governmental one—not atomized at the lowest into individualized, undifferentiated citizenship.

By the mid-1970s, the era of aboriginal self-determination had surely begun. Aboriginal peoples were demanding the legal provision of mechanisms for selfdetermination in order to participate fully in national economic life whilst retaining (p.355) their distinct legal and constitutional status. What followed was a period of recognition in which the legal system articulated new foundational principles to accommodate that ruling principle. Self-determination was not simply something aboriginal groups claimed. It was an aim many put into action with growing confidence and in growing numbers, once it became plain during the 1980s that the legal systems had made (and were making) sufficient acts of recognition towards the goal. For all their imperfection and incompleteness, the new legal foundations laid in the period of legal recognition in the 1970s and 1980s sustained this rising tide of aboriginal autonomy. As this activity increased and the legal systems entered their post-recognition phase in the 1990s, mounting pressure in the legal systems gave self-determination a new, more complex character.

Self-determination was not a goal achieved by aboriginal peoples at a single stroke, and, anyway, described an ideal and a process rather than a result. The experience of the last quarter of the twentieth century showed it to be—as indeed it remains in the new century—a highly difficult goal, a process as contested amongst aboriginal peoples themselves as in their relations with governments and private sector. Although the ideal of self-determination supposed and required a recalibration of the relationship between aboriginal peoples and the government, caution was the hallmark of those dealings. The legacy of a century was not shed overnight, nor in the space of a few years. The accretion of aboriginal distrust could not be sanded away by smoothly-spoken undertakings and rhetorical appeals to ‘new beginnings.’ Aboriginal caution was an expression of political maturity acquired over time. The caution was not one-sided. Governments—politicians and officialdom—were so versed in the vernacular and psychology of domination and control that a new climate in which they were to listen and respond to aboriginal peoples entailed a cultural sea-change. Domination was not easy to relinquish, especially when one inhabited institutions where it had long been the norm. By the end of the century that mentality still had not disappeared, but there was at least an official understanding of its inappropriateness. A related problem, especially in North America, but also born of that political peripherality, was the shortage of institutional memory in government bureaucracies like the BIA, DIAND, and Department of Maori Affairs. Aboriginal nations constantly found officialdom at the centre lacked familiarity with their specific situation, a tendency that accentuated reliance upon government agents in the field (in North America, on-reservation Indian Agents) and frustrated goals of self-determination.

The next chapter shows how that pervasive caution resulted in the repair rather than complete replacement of the established land-based regimes for management of indigenous peoples’ affairs (at least until the new century when radical overhaul of aboriginal governance was finally on the table in all jurisdictions). These regimes had come under mounting pressure during the 1990s as aboriginal groups placed new demands upon their outmoded structures and processes. This made fundamental legal reform inevitable, although it was a long while coming. In the meanwhile, running repairs were accomplished through legislative amendment and changes in administrative practice. In America tribal constitution under the IRA stayed the usual vehicle for selfgovernance, whilst in Canada the Indian Act remained virtually untouched except for the controversial Bill C-31. In New Zealand the trust provisions of the Maori land (p.356) legislation were extended and the jurisdiction of the Maori Land Court revamped (1993). Unlike the other jurisdictions, Australia did not have an historical model of Aboriginal group status. However the model adopted there of land councils and associations (1976) soon was hobbling in a manner not unlike the much older legal regimes of other jurisdictions. All were struggling by the 1990s to meet the modern demands of aboriginal groups, even the comparatively young Australian one.

That is not to suggest an absence of significant legislation, because in all jurisdictions major legislative initiatives and, in Canada, constitutional protection happened during the final quarter of the twentieth century. That legislation—with the dramatic exception of the Native Title legislation (Cth) in Australia—was usually the outcome of agreement between aboriginal peoples and government. The most dramatic examples occurred in the statutes giving effect to claims settlements negotiated and agreed with governments. This type of legislation was a notable legal phenomenon of the era of self-determination.

Dicey had described how the absolute sovereign will of the legislator (legal sovereignty) might be tempered by constitutional conventions. These were non-enforceable principles or rules affecting the exercise of the sovereign power and they arose where the political actors recognized and acted upon a rule that served a constitutional purpose.143 He had spoken in the context of the unwritten common law constitution, but even a written one like the American could never achieve comprehensiveness and around its silences such conventions would also grow. By the final decade of the twentieth century one might speak of a constitutional convention that statute law in the aboriginal field would not be passed without consultation and agreement. Even if—indeed particularly if—aboriginal self-determination derived at law from the permission of the sovereign legislator, that behoved the sovereign to exercise its paramount authority thoughtfully and in association with aboriginal ambition. That was the principle behind the practice. In North America and New Zealand one could argue confidently that by the late 1990s this practice represented a convention, though the experience of Australia with the native title legislation in 1993 and 1996 suggested that stage might not have been reached there.

The growth of that constitutional convention was also symptomatic of the considerably increased aboriginal participation in the institutions of national governance. Not only did they have growing representation (though still politically inconsiderable) in legislatures and government, but they were also becoming sharper practitioners of the late twentieth-century techniques of lobbying and media relations. Notable examples of that use of political institutions included the accomplishments of Matiu Rata in the third New Zealand Labour Government of the mid-1970s, Senator Ben Nighthorse Campbell (R. Colo.144) in the 1990s as first American Indian to chair the Indian Affairs Committee (Senate), and the filibustering of the Cree MLA Elijah Harper (1990) preventing the Manitoba ratification of the Meech Lake Accord (1987).

The major claims-settlement statutes were the most powerful expression of the new aboriginal involvement in the legislative process. In the United States the Alaska Native (p.357) Claims Settlement Act 1971 (ANCSA), an early and problematic example, was followed by a series of settlement statutes from 1978.145 The various Arctic claims settlements and Nunavut legislation in Canada, and the fisheries, Tainui, and Ngai Tahu settlements in New Zealand also demonstrated that principle in operation. In Australia that institutional familiarity lagged compared to the other jurisdictions—the Aboriginal voice was drowned out in the passage of the native title legislation. However, even there, negotiated native title agreements became an established feature of the statutory processes. Everywhere, these settlements were the outcome of a more collaborative role for aboriginal peoples.

Yet the legislation that facilitated those negotiated settlements was not the product solely of a new, more accommodating, mood in government. It has been indicated already that the courts played an instrumental role in enfranchising aboriginal peoples through landmark judgments that rocked governmental complacency in a field where it had become used to calling its own tune. Of course, the governments could have sponsored legislation to overrule the court judgments, but that would have displayed a cavalier attitude towards the rule of law unthinkable at least in Canada and New Zealand and constitutionally awkward in the United States. One of the bitter lessons for Australian Aborigines from the native title legislation controversies was that the Commonwealth was willing to abridge court judgments even in defiance of international law as to render them more politically palatable and digestible. But even there, however, the native title legislation stopped well short of overriding the general recognition of aboriginal title made by the Mabo and Wik judgments. It showed that the politicians were not happy leaving the entire process to the courts, the court-led Canadian approach to native title incompatible with the impatient Australian temperament.

Those landmark cases of the late 1970s–1980s and (in Australia) early 1990s were the monuments of the period of recognition. They shook the legal system into accommodation of aboriginal presence and set foundational principles for the jurisprudence that followed. In these cases, senior judges reached for high language that sometimes took a poetic and epic tone. The judgments made a careful effort to set out the facts in as broad and detailed an historical context as possible with a careful and ample consideration of the aboriginal view, as though by so doing they demonstrated the court's commitment to an inclusive justice. Yet even where, as often they did, the judgments sent the aboriginal claimants away empty-handed or back to trial to start again, they nonetheless and very calculatedly opened the door to doctrinal development.

The common law thus came to articulate principles for the conduct of the relations between government and its aboriginal peoples, this process being augmented in Canada by the unelaborated constitutional recognition of existing aboriginal and treaty rights in section 35 of The Constitution Act, 1982. Although aboriginal title was the most dramatic manifestation of that trend in the Commonwealth jurisdictions, the emergent and broader notion of common law ‘aboriginal rights’ somehow transcended the land-based character of the litigation. American courts always had their doctrine of residual tribal sovereignty, which Martinez (1978) re-articulated forcefully, setting (p.358) parameters for the future direction of federal Indian law. In the United States increasing legalism therefore orbited about issues of self-governance and tribal jurisdiction rather than land, the focus of the other jurisdictions’ case-law. However, the American courts did recognize that tribes could sue the federal government for breach of trust, a spectre that culminated in the Cobell litigation of the early 2000s. The Anglo-Commonwealth cases did likewise, though more ambivalently (especially in Australasia). They described the Crown as being in a fiduciary-like relation with aboriginal peoples, and indicated that this was not limited merely to the Crown's formal ownership and management of tribal land and other assets. In short, they formed a Commonwealth version of the American notion of breach of trust. In all jurisdictions the courts both set and intimated standards of government conduct in relation to aboriginal people (apart from, though including, the common law aboriginal title) that would be regarded as justiciable. This standard-setting might have been vague and open-ended, hinting the prospective judicial development of principles of government conduct beyond those that were land- and asset-management based. Though indistinct, it was, however, a very important outcome of the period of recognition. This spectre of a justiciable fiduciary duty certainly generated a good deal of uncertainty within the public sphere as well as some speculative and occasionally misbegotten litigation. However it signalled the courts’ new willingness to look at legal and administrative processes in a more careful manner, less disposed towards giving officials the free hand of before. It sent ripples through governmental bodies and nudged them into a more responsive mood.

By the beginning of the last decade of the century, then, aboriginal peoples were being judicially incorporated into the realm of public law, a new though indeterminate presence that officialdom now overlooked at its peril. In Martinez (1978) the American Supreme Court refused to apply Constitutional norms of equal treatment and non-discrimination to the Pueblo's membership code. This curbed the emergent trend in lower courts where the ICRA had been used intrusively. In Canada the Guerin case (1984) described the fiduciary responsibilities of the Crown, rendering it liable for high-handed bureaucratic neglect of Indian interests. The Sparrow (1990) case followed and held that in setting conservation priorities for lake fisheries the Crown was required—and could be called upon by the courts to demonstrate—that aboriginal interests had been given appropriate consideration ahead of lesser interests (such as those of recreational user). Similarly the New Zealand Court of Appeal issued a series of judgments (1986–90) requiring the government to negotiate arrangements with Maori to protect the availability for claims settlement of Crown land and related assets (such as coal and timber) about to be transferred to state enterprises. The court reserved the right to impose its own arrangement in the event of the parties failing to come to some agreement. In Australia, the High Court judgments in Mabo (1992) dramatically recognized common law aboriginal title. Those judgments were peaks, but there were many others that demonstrated how courts were integrating the aboriginal element into the exercise of public power. The message that governments and bureaucracies in Canada and Australasia were not slow to read was that they should take incorporating measures of their own motion or the courts would do so. Greater sensitivity to aboriginal peoples’ interests was as apt to be required by the courts so much as an emanation from an occasional policy initiative. By the late 1980s government departments and public (p.359) sector bodies were auditing and monitoring their processes in terms of their accommodation of an aboriginal dimension, particularly in the areas of education, health, and welfare. This meant that in Australasia and Canada aboriginal rights litigation—and the spectre of it—was as remarkable for the changes in government practice brought by judicial suggestion and obiter dicta as by actual holding.

This willingness of the courts to breathe law into the government-tribe relationship was more than a judicial response to the sad history that lay behind aboriginal litigation. During the last quarter of the twentieth century the courts had developed rules of administrative law that had bridled the exercise of public discretion. The development of particular principles for government-tribe relations was in many ways an extension of that activity. Given the history of Anglo-American public law in the late twentieth century, it would have been unusual had the courts not taken an interest in making government-tribe relations justiciable.

(b) Giving rights aboriginally: self-determination in post-recognition period (the 1990s–)

The modern era of self-determination opened with the relationship between the government and aboriginal peoples dominating legal attention. Courts spelt out fresh parameters for that relationship and signalled their willingness to intervene. The outmoded notion that these relations were non-justiciable matters of executive discretion was replaced by more modern principles of judicial review and legality. As the governmental relationship with aboriginal peoples was being redrawn during the 1970s and 1980s, tribes were becoming more active autonomous groups. Claims-making was an important (if not dominant) part of this reanimated political life. However tribal nations were asserting their authority in other spheres as well, such as contracting for supply of governmental services or joint ventures with corporate interests. During the 1990s, claims settlement became a real prospect for many aboriginal groups and boosted the revivifying tribalism. By the end of the 1990s those groups had become more prominent in profile and ambition. Unless they were lucky enough to have a particular legal regime specially constructed (through settlement), or willing to adopt an exclusively Anglo vehicle (such as incorporation or registered charity), they remained constrained by the legal structures for aboriginal group enterprise already in place. The exception was America where the principle of inherent sovereignty imbued the tribe with self-executing authority that in the other jurisdictions required specific legal constitution. Yet that difference did not spare American Indian nations a similar experience to that of their brethren in other jurisdictions, for the hidebound, boilerplate IRA constitutions still dominated their tribal systems. The more active a tribal nation became and the more plentiful the rights headed or lodged its way, the more tested became each nation's mode of governance. Settlements and deal-making put tribal systems under tremendous strain and during the 1990s that began to tell. Governance was a compendious term used with growing regularity during the 1990s to encapsulate the range of issues that increasingly were circling over the constitution of each tribal nation.

Whereas the legal focus of the previous two decades had been essentially binary—aboriginal nations and government—that of the 1990s became wider and multipartite. Until then, simplistic depiction of (usually) antagonistic ‘government versus aboriginal’ (p.360) form of engagement had largely sufficed. However as settlements and contracting became a regular feature of aboriginal life, questions of status became more pressing. That is, the period of recognition having led public institutions to accepting the existence of aboriginal rights (some, admittedly, ill-defined), attention turned to the downstream, post-recognition questions surrounding the holding or management of those rights. Who, it was asked, were the bodies to hold and manage those rights? In order to reach settlement and hold the considerable assets available, aboriginal groups were required to have a constitutional form recognized by law. Yet, in this more autonomous post-recognition world, legal regimes such as the IRA constitution, Indian Act band council, Maori Trust Board, or Aboriginal Association were plainly inadequate, struggle as many groups did under them. The right of aboriginal groups to determine their own membership was fully accepted; however the host legal system expected clear mechanisms of composition and internal regulation to be put in place. Groups receiving considerable resources, as from settlements, government servicing, or (as in the on-reserve casino industry in the United States) administration of lucrative enterprises, had to have in place the means of determining who could or could not participate in the benefits. Whereas once identification of membership through enrolment was regarded as a precondition to the dismantling of the tribal asset base, this now became a precondition to its rehabilitation. Necessarily that meant that flexible customary rules of membership were replaced by fixed textualized criteria.

Increasingly too, as resources were poised over or poured into the tribal pocket, the stakes and level of the disputation inherent in any human group linked by kin and culture were raised. Not only was the composition of the group to be more clearly specified but also the internal procedures of leadership, management, and accountability. For aboriginal peoples the price of participation in the post-recognition world was the adoption of transparent, westernized forms of tribal constitutionalism. The principle of aboriginal self-determination recognized the rule of tribal law, but for many tribes that rule turned out to be not very different from Anglo law.

Deep-seated issues of status arose as the post-recognition phase got into stride. Not only were aboriginal groups required to adopt a constitutionalized form in order that they might hold rights, but they had to find means of resolving the internal disputes relating to membership, leadership, and other issues of group dynamics. As settlement loomed and contractual opportunities rolled in, aboriginal groups had to face these questions of constitutional form squarely. The prospect might have been unattractive to many but the alternative was bleak. Leaving governance alone could mean the group would have to continue inhabiting the old, disliked regime, or it could mean the financial opportunities would not be realized. Unsurprisingly the controversies generated within the group and between groups were intense and became a dramatic feature of the 1990s. The vehemence of this disputation was often so fierce that neither the customary nor ordinary legal systems could accommodate it happily. Furiously it leapt from one mode to the other, and then usually inconclusively (for that was the nature of what were often long-standing irresolvable tensions within the group and its relations with others). Although frequently messy and inconclusive, the engagement of tribal custom and Anglo legalism was neither wholly negative nor entirely positive in its effects upon aboriginal culture. It was simply a reflection of how natural human (p.361) disputation could magnify and ricochet when considerable resources were at stake. For aboriginal peoples the strains of settlement-time were symptomatic of the enduring dialectic of colonialism, the tension between accommodation of westernism and preservation of aboriginalism.

In this post-recognition environment Anglo legalism engaged the processes of internal and external tribal engagement more actively than ever before. It was an encounter that implicated not only the institutions of the state—its ministers, courts, legislators, specialist tribunals, and bureaucracies—but the constituents of aboriginal culture and occasionally the general citizenry as well. The crude reductionism of claims-time had changed into a complex legal web with a wide cast of actors and intricate cross-currents. Moreover, that web also had a geographical aspect in that group-specific settlements and rights entailed particular regimes over certain regions. Patchwork jurisdictionalism had long been a feature of American Indian law, but now it became a feature of the Canadian and Australasian systems. Aboriginal peoples of these countries would not be treated homogeneously. This acknowledgment of the differences within aboriginal culture made provision for self-determination not only a slow, group-by-group process but one marked by variegated structures and results.

The emergence of an intermediate ‘Indigenous Sector’ was one important sign of the complex network of actors, structures and theatres of engagement. This ‘Sector’ was:

… neither the ‘state’ (although it is almost entirely publicly funded), nor is it ‘civil society’ (though the organisations are mostly private concerns in their legal status). Rather the Indigenous Sector is a third thing created out of the interaction—sometimes, but not always, frictional—of government and the Indigenous domain.146

The Aboriginal and Torres Strait Islander Commission (ATSIC) in Australia founded in 1989 was an example of a body in that Indigenous Sector. Importantly, this sector not only co-existed between the two clear zones of claims-time—the governmental and traditional indigenous ones—but it became a site for new regional and national forms of Aboriginal identity. Aboriginal nations also assumed responsibility for the delivery of government services and programmes to their own people and that way became part of the ‘Indigenous sector’. These groups entered into contractual arrangements with government to perform its duties in areas such as education and health, determining budget, setting priorities, and delivering services to aboriginal people. Urban, nonstatus aboriginals outside the traditional political life of the tribal nation also entered this sector. Their growing role in service delivery in urban areas enabled them increasingly to claim their own distinctive rights to self-determination, sometimes antagonizing the traditional territory-based polities.

In the last two decades of the century the legal landscape was far less monolithic. Aboriginal people had obtained rights and, through them, resources that transformed their situation and put them into a more bustling, multipartite political and legal world. Activist and radical thrive in a world where claims are being directed angrily against an ‘oppressive’ state. Law firms flourish where money is circulating and deals (p.362) are being made. Generalizations are hazardous, but one can safely assert that aboriginal people at the beginning of the twenty-first century were living in a law-ridden, postrecognition world. In the short space of a decade—the hectic 1990s—their affairs were becoming ‘juridified’, in the sense of being surrounded by a new, pervasive, and commodifying legalism.

This juridification occurred through a variety of interconnected means. It happened in statute, and contractually in the texts of special agreements with government, local authority, and corporations, settings where aboriginal peoples had some measure of control. In that manner, when aboriginal peoples had been involved in the formation of the statute or agreement, juridification was substantially a co-operative enterprise, even where after negotiation and compromise they might not have been entirely happy with the result. Governments consciously moved out of the antagonistic form of engagement into a more conciliatory relationship with aboriginal peoples. The conduct of individual negotiations was inevitably bumpy and tested that commitment, but in principle (at least) it was there, as the steady trickle of settlements confirmed. From the government's perspective this construction of particular regimes by agreement with the claimant group was an expression of the principle of selfdetermination. The cost of this rehabilitated relationship, however, was unrest within aboriginal culture both inside the claimant group and in its relations with others. Settlement came at a price not only to government but aboriginal peoples. The divisions and cracks it made showed it was not necessarily the end of the history of colonialism that governments liked to tout in selling the process to the wider, increasingly wary (and weary) electorate.

Juridification also occurred in the courts to which aboriginal peoples took their disputes with much greater propensity after the landmark judgments had signalled, sometimes misleadingly, a new approachability. There, of course, aboriginal fate was in the hands of Anglo legalism. Although contestation had always been a fact of aboriginal life—as for all polities, whatever their culture—in the last two decades of the century (particularly in Canada and New Zealand) it was transplanted into this new forum, the courts.147 Here it was remoulded by the haphazard and often indeterminate character of doctrine formed through adversarialism as well as by the disposition of the judges. Some—the British Columbia Supreme Court of the 1970s and 1980s a powerful example—were notoriously hostile to aboriginal claims. Minced through the formalist case method of the common law, the ideal of aboriginal self-government and -management did not always fare well. The courts might have become a better bet for aboriginal peoples from the mid-1970s but, once the landmark judgments had rippled through the system, they were not always a safe one, especially if the government were a party. By the 1990s aboriginal peoples were more thoroughly engaged with the government at a political level with new leverage that the courts had surely facilitated. But as the decade wore on, the courts were no longer as adventurously-minded as they had been in the giddier, mould-breaking days of the 1970s and ’80s. The Rehnquist (p.363) Supreme Court chipped away at tribal sovereignty and the Anglo-Commonwealth courts showed diminishing appetite for gesture-judgments against their governments. There was a growing sense that the grand judicial pronouncements had been made, as the courts showed a clear preference that aboriginal claims be resolved in a political rather than judicial forum. On the whole that message was heeded, although litigation (or rather the threat of it) remained an integral part of the repertoire of intensified political engagement.

The increased appearance of inter- and intra-tribal disputes in the courts was also a sign of juridification. Aboriginal people became more willing to litigate matters of leadership (electoral matters most often), mandate, and representation before Anglo adjudicators, a most un-customary process. Aboriginal peoples appropriated the mana of the courts for their own purposes. In the United States the tribal courts were drawn into that, and in response many articulated principles of judicial review against tribal authorities. This phenomenon will be discussed more fully later, but here tribal courts were able to draw upon threads or cords of custom to resolve such disputes. In the Anglo-Commonwealth jurisdictions, however, these disputes came before white judges who did not regard aboriginal custom with the same sense of intellectual availability as the tribal court benches in America. The courts of Canada and New Zealand in particular struggled with this internecine litigation, failing to weave aboriginal custom into their consideration and resolution of the various matters. The courts did not see that opportunity and with these internal disputes they largely struggled, much more than in disputes implicating the government where the basic tools of judicial review largely sufficed.

This inter- and intra-tribalism continued to be an area of legal exploration in the twenty-first century and remained an area where judicial imagination struggled. In that regard there was a lesson to be learnt from the South African experience, a direction from which Anglo-Commonwealth lawyers have not been used to taking instruction. Since 1927 South African courts have been able to take cognizance of customary law.147 The South African Constitution (1996) maintained that, explicitly recognizing tribal custom as a source of law as well as the institutions of tribal governance.148 A similar provision in Australasian and Canadian law might have oiled a more coherent jurisprudence of aboriginal relations inter se. In this sphere judges seemed to freeze when faced with the culturally-specific character of the litigation before them.

At the end of the twentieth century this intensifying legalism was taking a dominant role in aboriginal affairs, perhaps too dominant some felt. Status continued to be at the centre but now it was being spelt out in much more legal detail than previously. That was reflected during the 1990s in the growing intensity of status-related issues.

(p.364) American Indian groups struggled to win federal recognition as the Rehnquist Supreme Court pruned the reach of tribal jurisdiction. Other jurisdictions faced issues of tribal constitution and governance. New Zealand began the decade with controversial, short-lived legislation (1990) establishing a uniform system of iwi (tribal) representation that Maori rejected vehemently. Early the next century its Law Commission tabled proposals that had a similar ring, if better-dressed and velvetgloved. The Canadian government did not take the lesson from New Zealand on board when it proposed a uniform system of First Nations governance to replace the Indian Act (2002). First Nations’ protests were fierce and immediate, replaying the refusal of New Zealand Maori to have indigenous group life funnelled into inappropriate legal rigidity. In Australia a review of the Aboriginal Councils and Associations Act 1976 (2002) also proposed replacement of the outmoded statutory structure. The legal forms for tribal governance and enterprise thus became important matters outstanding at the time this book ends. Whereas the American model of inherent sovereignty was enabling in itself, the other common law jurisdictions lacked that foundational principle and sought the erection of new flexible statutory regimes. The difficulty they were encountering early in the twenty-first century showed that pursuit of the ideal of selfdetermination still remained a goal more easily stated than achieved.

The era of self-determination was the proverbial game of two halves. The first was essentially a period in which aboriginal claims and rights were habilitated and recognized by the legal systems of each jurisdiction. Aboriginal groups began tentatively, then with more assurance, to claim and exercise rights of property ownership and selfdetermination within the imperfect framework of each common law jurisdiction. Those aboriginal rights having been admitted at least in principle, the second phase was one in which their consequences started rippling through the institutional culture. Recognition and post-recognition do not describe two discrete phases sealed off from one another, for life in the latter retained strong elements of the former, especially in moments when governments appeared to backtrack or grow cold on settlement and reconciliation. Juridification signified the movement of the legal systems from a period of recognition into the post-recognition terrain where those rights were integrated with other rights. The intense legalism of the 1990s was essentially the bustle of the rights-place, as aboriginal rights rubbed against other types and sites of rights. Aboriginal group rights were being weighed against individual rights valued by the host constitutional order, such as those of non-discrimination, accountability, and due process. They were also rubbing against the rights and jurisdictional interests of public sector institutions of governance apart from the central government—federal units like States and Provinces, or municipal authorities. Aboriginal rights also had to be considered against the interests and welfare of the wider community, as the prioritizing exercise of Sparrow showed. In the post-recognition period of the 1990s each legal system began integrating aboriginal rights into the rights-place of the common law. This was a fraught and ongoing business, by its nature an inconclusive and continual as well as messy one. Inevitably suspicion was fuelled that the ongoing processes of refinement were pruning those rights back rather than amplifying them. The history of aboriginal rights in the post-recognition era was not necessarily a wholly progressive one, as the (p.365) track record of the Rehnquist Supreme Court in America and legislation of the Howard Government in Australia in the late 1990s showed. However any suggestion that aboriginal rights were precarious underestimated the paradigm shift that had happened in the first three decades of the era of self-determination. Aboriginal affairs were now firmly and irreversibly rights-based.

The following chapters consider those two phases of the era of settlement in more detail. The next chapter (7) explains how each legal system brought aboriginal affairs into a rights-led process. Chapter 8 describes the new, fraught landscape of the postrecognition phase. One might see 1985–95 as the crucial transitional period. In that period the convulsions of legal recognition changed into incipient downstream issues of governance and reconciliation that were in full cogitation at the end of the century. The transitional character of the decade 1985–95 is reflected in the organization of material in the next two chapters. Chapter 7 describes the recognition period of the 1970s and 1980s but with an eye also towards the looming, more intense legalism of the 1990s. It incorporates aspects of the transitional period but leaves their fuller explanation for the next chapter (8). The final chapter (9) looks at aboriginal claims, landrelated in particular, and straddling both periods considers the means by which each jurisdiction accommodated them.


(1) The term ‘aboriginal self-determination’ is used in the remainder of this book to describe the version that settler-states were able to accept, the one that did not incorporate the secessionist element of the full-blown right of ‘all peoples’ in the common article 1 of the human rights Covenants (1966).

(2) The point is made well by Tim Rowse, ‘Assimilation and After’ in Ann Curthoys, AA Martin, and Tim Rowse (eds), Australians from 1939 (Sydney: Fairfax, Syme and Weldon Associates, 1987) 133–149 at 133–139.

(3) ‘[W]e want to build a society in which there shall be no minorities or special classes’: Mr P Hasluck, Report on the Native Welfare Conference, 18 October 1951. Text in S Stone (ed), Aborigines in White Australia; A Documentary History of the Attitudes Affecting Aboriginal Policy and the Australian Aborigine 1697–1973 (London: Heinemann Educational Books, 1974) 193–197.

(4) Commission on Organization of the Executive Branch of Government, Indian Affairs: A Report to Congress (1949) 77–80.

(5) In May 1943 Oklahoma Senator Elmer Davis (later publicly supported by Senator K Wheeler, co-sponsor of the Indian Reorganization Act) had introduced a report, S-310, calling for a unilateral abrogation of all treaties with Indian nations, withdrawal of federal recognition and abolition of the Bureau of Indian Affairs: Rebecca L Robbins, ‘Self-Determination and Subordination: The Past, Present and Future of American Indian Governance’ in M Anette Jaimes (ed), The state of Native America: genocide, colonization, and resistance (Boston: South End Press, 1992) 87–121, 98.

(6) Codified at 25 USC §232.

(7) Codified at 25 USC §233.

(8) HR 4725, 89 Cong, 2nd Sess (1948).

(9) Representative Saylor of Pennsylvania (1953), quoted in Oliver, ‘The Legal Status of the American Indian Tribes’ (1959) 38 Oregon L Rev 193, 238 n 247.

(10) F Cohen, ‘The Erosion of Indian Rights, 1950–1953’ (1953) 62 Yale LJ 348, 352–359.

(11) House of Congress Concurrent Resolution 108, 1 August 1953. See C Wilkinson and Biggs, ‘The Evolution of the Termination Policy’ (1977) 5 American Indian L Rev 139.

(12) For example the observations in Bryan v Ithaca Country 426 US 373 (1976) and Washington v Confederated Bands and Tribes of the Yakima Indian Nation 439 US 463 (1979).

(13) Donald J Burnett Jr, ‘An Historical Analysis of the 1968 “Indian Civil Rights Act”’ (1972) 9 Harvard J of Legislation 557, 568–569. The President promised a bill requiring State consultation and Indian consent, but that measure did not eventuate (until 1968).

(14) G Goldberg, ‘Public Law 280: The Limits of State Jurisdiction over Reservation Indians’ (1975) 22 UCLA L Rev 535.

(15) Washington v Confederated Bands and Tribes of the Yakima Indian Nation 439 US 463 (1974).

(16) HR Congress Resolution 108, 83rd Congress, 1st Session, 99 Cong Rec (1953).

(17) See Angie Debo, A History of the Indians of the United States (Norman: Oklahoma University Press, 1984) 371–372.

(18) On this see Nagel, American Indian Ethnic Renewal, 214–217. This direction split the Colville community.

(19) James E Officer, ‘Termination as Federal Policy: An Overview’ in Kenneth R Philp (ed), Indian Self-Rule: First Hand Accounts of Indian-White Relations from Roosevelt to Reagan (Salt Lake City: Howe Brothers Publishers, 1986) 118, 125.

(20) See S Herzberg, ‘The Menominee Indians: Termination to Restoration’ (1978) 5 American Indian L Rev 143.

(21) Burnett, ‘Historical Analysis of the Indian Civil Rights Act’, 570.

(22) In fact a number of tribes were terminated during the Kennedy Administration and in the early years of the Johnson Presidency: Nagel, American Indian Ethnic Renewal, 216.

(23) Officer, ‘Termination as Federal Policy’, 126.

(24) Tee-Hit-Ton Indians v United States 348 US 272 (1954).

(25) United States v Seminole Indians 180 Ct Cl 315 (1967); Whitefoot v United States 155 Ct Cl 127 (1961); Tlingit and Haida Indians v United States 147 Ct Cl 315 (1959).

(26) Burnett, ‘Historical Analysis of the Indian Civil Rights Act’, 571.

(27) Martinez v Southern Ute Tribe 249 F 2nd (10th Cir 1957), cert denied 356 US 960 (1958); Native American Church v Navaho Tribal Council 272 F 2nd 131 (10th Cir 1959).

(28) 358 US 217 (1959).

(29) For example the Blackfeet of Montana, aided by their naturalized citizen, the famous lawyer Felix S Cohen, used both the courts and confrontation during the early 1950s—see Felix S Cohen, ‘The Erosion of Indian Rights, 1950–53: A Case Study in Bureaucracy’ (1953) 62 Yale LJ 117–127.

(30) Robbins, ‘Self-Determination and Subordination’, 100–104. See also the detailed account of this militancy in Nagel, American Indian Ethnic Revival, 213–233; and Troy Johnson, ‘The Roots of Contemporary Native American Activism’ (1996) 20 American Indian Culture and Research Journal 127.

(31) Address by President Lyndon Johnson to Congress, 6 March 1968, reprinted in Public Papers of the Presidents (Washington: Government Printing Office, 1970) 335.

(32) Duane Champagne, ‘Beyond Assimilation as a Strategy for National Integration: The Persistence of American Indian Political Identities’ (1993) 3 Transnational Law and Contemporary Problems 109, 126: ‘the conservative and relatively well integrated pueblo community excluded BIA administration from its community by contracting for BIA and federal services, and putting federal programs under local control.’

(33) President Richard Milhous Nixon, Special Message on Indian Affairs, 8 July 1970. Extracts in Prucha (ed), Documents of United States Indian Policy, 256, 257.

(34) Act of 15 December 1970, Pub L No 91–550, 84 Stat 1437. Extracts of President Nixon's address are in Prucha (ed), Documents of United States Indian Policy, 259–260.

(35) HR 13329, 95th Cong, 2nd Sess.

(36) Senate Joint Resolution no 133 was sponsored by Senator James Abourezk in 1973 to establish a Federal Commission to review all aspects of policy, law, and administration relating to affairs of the United States with American Indian tribes and people. The Senate and the House of Representatives both adopted the Resolution which was signed into law on 2 January 1975, establishing the American Indian Policy Review Commission (Public Law 93-580).

(37) The Commission had recommended an Indian Affairs Committee in Senate. Senate Resolution 405, to make the Select Committee on Indian Affairs a permanent committee of the Senate, was introduced by Senator Abourezk on 22 February 1978. The Rules Committee amended the motion to give the Committee another two years of life. However the 96th Congress (S Res 448) gave the Committee permanence.

(38) 25 USC §2701; 102 Stat 2467.

(39) Indian rights scholar, Imre Sutton, advised Indian communities to separate the desire for a casino from the quest for recognition: ‘Land Restoration and Casinos are Separate Issues’, Los Angeles Times, 17 August 1997, B–7.

(39) 476 US 498 (1985).

(41) 470 US 226 (1985).

(42) Kelly, ‘Indian Adjustment and the History of Indian Affairs’ (1968) 10 Arizona L Rev 559, 568.

(43) Senate Committee on the Judiciary, Summary Report of Hearings and Investigations by the Subcommittee on Constitutional Rights, 88th Congress, 2nd Sess 1–4 (1964).

(44) Report on Tribal Government: Final Report to the American Indian Policy Review Commission, Task Force Two, Tribal Government (Washington: United States Government Printing Office 1976) 188–189.

(45) Clinton et al, Federal Indian Law, 370.

(46) Coyote Valley Band of Pomo v United States 639 F Supp 165 (ED Cal 1986), 173.

(47) David H Getches, ‘Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law’ (1996) 84 California L Rev 1573, 1593.

(48) ‘Consultation and Coordination with Indian Tribal Governments’, Executive Order no 13175, 6 November 2000, 65 FR 67249. Also similar announcements in Memoranda of President ‘Governmentto-Government relations with Native American Tribal Governments’, 29 April 1994, 59 FR 22951 and Executive Order no 13084 relating to consultation and co-ordination with Indian tribal governments, 14 May 1998, 63 FR 27655 (superseded by Order of 6 November 2000).

(49) The 1951 amendments to the Indian Act were the culmination of a process that had begun in 1946 when a Special Joint Committee on Indian Affairs was established by the Senate and the House of Commons. This Committee spawned a royal commission, conducted three years of hearings and issued reports in 1946, 1947, and 1948 as well as establishing a subcommittee to prepare in association with the Indian Affairs Branch, draft legislation that would reflect its deliberations.

(50) Kerry Wilkins, ‘“Still Crazy After All These Years”: Section 88 of the Indian Act at Fifty’ (2000) 38(2) Alberta L Rev 458.

(51) SM Weaver, Making Canadian Indian policy: the hidden agenda 1968–70 (Toronto: University of Toronto Press, 1981) 20.

(52) The Report was the outcome of submissions made by a delegation of the IODE (Independent Order of the Daughters of the Empire) to the then Minister of Indian Affairs, Richard Bell, urging a three- to fiveyear study to determine how Indians could achieve equality of opportunity with other Canadians.

(53) HB Hawthorn (ed), A Survey of the Contemporary Indians of Canada, A Report on Economic, Political, Educational Needs and Policies (Ottawa: Indian Affairs Branch, 1966), especially ch xviii ‘The Politics of Indian Affairs,’ and see p 365 describing the Department of Indian Affairs as a ‘version of colonialism’ and a ‘quasi-colonial government.’

(54) Ibid 7.

(55) Ibid 13.

(56) Weaver, Making Canadian Indian Policy, 79.

(57) Weaver, Making Canadian Indian Policy, 28–29.

(58) Prime Minister Trudeau, ‘Remarks on Aboriginal and Treaty Rights’, speech given 8 August 1969 in Vancouver, BC. Excerpts in Cumming and Mickenberg (eds), Native Rights in Canada, 2nd edn, App vi, 331.

(59) Ibid 331–332.

(60) E Elmer Patterson II, The Canadian Indian: A History Since 1500 (New York: Macmillan Publishing, 1972) 177.

(61) Weaver, Making Canadian Indian Policy, 187.

(62) This had been piecemeal and based mostly upon statutory recognition of fishing and hunting rights (including those in the Prairie Provinces under the Natural Resources Transfer Agreement 1925): for example R v Sikyea [1964] SCR 642; R v White and Bob (1965) 50 DLR (3rd) 613 (BCCA), affd (1966) 52 DLR (3rd) 481 (SCC); R v Wesley [1964] SCR 81.

(63) See WH McConnell, ‘The Calder case in Historical Perspective’ (1974) 38 Saskatchewan L Rev 88–122.

(64) Hamlet of Baker Lake v Minister of Indian Affairs [1980] FC 518 esp 557–559.

(65) [1984] 2 SCR 335.

(66) David Nicholson, ‘Indian Government in Federal Policy: An Insider's Views’ in L Little Bear, M Boldt, and JA Long (eds), Pathways to Self-Determination: Canadian Indians and the Canadian State (Toronto: University of Toronto Press, 1984) 59, 60–61.

(67) Ibid 64.

(68) Canada, Department of Indian Affairs and Northern Development, Living Treaties, Lasting Agreements: Report of the Task Force to Review Comprehensive Claims Policy (Ottawa: DIAND, 1985).

(69) Report of the Special Committee, Indian Self-Government in Canada (Ottawa: Canadian Government Publishing Centre, Supply and Services Canada, 1983). The Penner Committee was a special Parliamentary committee. In response the federal government tried to establish framework legislation for Indian self-government which was tabled as Bill C–52 (‘An Act Relating to Self-Government for Indian Nations’). The Bill died when Parliament was dissolved. The Bill had revealed a divergence between regional and national aboriginal organizations (who had supported it) and bands (who felt it failed to capture their diversity).

(70) C Bell and M Asch, ‘Challenging Assumptions: The Impact of Precedent in Aboriginal Rights Litigation’ in M Asch (ed), Aboriginal and Treaty Rights in Canada. Essays on Law, Equality and Respect for Difference (Vancouver: UBC Press, 1997) 39, 45.

(71) [1990] 1 SCR 1075; 70 DLR (4th) 385.

(72) Dalee Sambo, ‘Indigenous Peoples and International Standard-Setting Processes: Are State Governments Listening?’ (1993) 3 Transnational Law and Contemporary Problems 13, 36, and see 32–45 for an analysis of the Charlottetown Accord's treatment of aboriginal rights.

(73) Federal Policy Guide: Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government (Ottawa: Minister of Public Works and Government Services Canada, 1995).

(74) Pamajewon v The Queen [1996] 2 SCR 821; Delgamuukw v The Queen [1997] 3 SCR 1010.

(75) Corbière v Canada [1999] 2 SCR 203.

(76) Gumbert, Neither Justice Nor Reason, 19–20.

(77) ‘[W]e want to build a society in which there shall be no minorities or special classes’: Mr P Hasluck, Report on the Native Welfare Conference, 18 October 1951. Text in Stone (ed), Aborigines in White Australia, 193–197.

(78) Chesterman and Galligan, Citizens Without Rights, 193.

(79) Ibid.

(80) Conference of Commonwealth and State Ministers on Aboriginal Welfare, Darwin 11 and 12 July 1963, ‘Statement of Policy’, text in S Stone (ed), Aborigines in White Australia, 201–202.

(81) See Richard Broome, Aboriginal Australians: Black Responses to White Dominance 1788–1994 (Sydney: Allen and Unwin, 1994) 177.

(82) Ibid 176.

(83) EG Whitlam, Debate in the House of Representatives (Cth) 13 August 1968, text in S Stone (ed), Aborigines in White Australia, 211, 213–214.

(84) HREOC, Social Justice Report 2002, 10.

(85) Tim Rowse, Obliged to be Difficult: Nugget Coomb's Legacy in Indigenous Affairs (Cambridge: Cambridge University Press, 2000) 107.

(86) See C Fletcher, ‘Living Together but not Neighbours’ in P Havemann (ed), Indigenous people's rights in Australia, Canada and New Zealand (Auckland: Oxford University Press, 1999) 341–347.

(87) Chesterman and Galligan, Citizens Without Rights, 195–199.

(88) C Fletcher, ‘Living Together but not Neighbours’, 342.

(89) For an overview of this legislation see Bradley Selway QC, ‘The Role of Policy in the Development of Native Title’ (2000) 28 Federal L Rev 409–414.

(90) Broome, Aboriginal Australians, 189–190.

(91) Selway, ‘Role of Policy’, 414.

(92) Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1.

(93) More fully see Jeremy Webber, ‘Native Title as Self-Government’ (1999) 22 University of New South Wales LJ 600.

(94) More fully R Bartlett, ‘Political and Legislative Responses to Mabo’ (1993) 23 University of Western Australia L Rev 352. There is a judicial consideration of the scope of the 1993 Act before its amendment in 1998 in Western Australia v Commonwealth (1995) 183 CLR 373, 453–459.

(95) Wik v Queensland (1996) 187 CLR 1.

(96) See Gillian Triggs, ‘Australia's indigenous peoples and international law: validity of the Native Title Amendment Act 1998 (Cth)’ (1999) 23 Melbourne University L Rev 372.

(97) Fletcher, ‘Living Together but not Neighbours’, 342.

(98) W Sanders, Towards an Indigenous order of Australian Government: Rethinking self-determination as Indigenous affairs policy (Canberra: Centre for Aboriginal Economic Policy Research Paper no 230, 2002) 2.

(99) E Johnson QC, Royal Commission Into Aboriginal Deaths in Custody, National Report (1991) at 503–504. The Commission conceded the variety of opinions within Aboriginal communities about the scope of self-determination but said there was a core belief in Aboriginal control of decision-making and choice.

(100) Council of Australian Governments, National Commitment to improved outcomes in the delivery of progams and services for Aboriginal peoples and Torres Strait Islanders (Perth: COAG, 1992) para 4.1 spoke of service delivery by all levels of government to encourage ‘empowerment, self-determination and self-management by Aboriginal peoples and Torres Strait Islanders.’

(101) The Hon GL Hand, Minister for Aboriginal Affairs, Speech on the Aboriginal and Torres Strait Islander Commission Bill 1989, Second Reading, House of Representatives (Australia), Hansard, 4 May 1989, 1994.

(102) Alison Anderson, ‘ATSIC abolished to silence Indigenous voice’, The World Today—Friday 16 April 2004, interviewing Minister for Indigenous Affairs Amanda Vanstone.

(103) The Council for Aboriginal Reconciliation was established as a statutory authority on 2 September 1991 when the Council for Aboriginal Reconciliation Act 1991 received the Royal Assent. Its first members were appointed on 15 December 1991. Like other appointees over the Council's life, they were prominent Australians drawn from Aboriginal, Torres Strait Islander, and wider communities, bringing a comprehensive range of views and approaches to the Council's deliberations. The life of the Council was not extended at the end of its ten-year term in December 2000.

(104) Mick Dodson and Sarah Pritchard, ‘Recent Developments in Indigenous Policy: The Abandonment of Self-Determination’ (1998) 4(15) Indigenous Law Bulletin.

(105) In April 1999 the United Nations Human Rights Committee criticized Canada for its slow response to the RCAP. The Canadian Human Rights Commission echoed that later the same year but its attack on the federal government was vastly less vehement than the Australian counterpart.

(106) J Herron, Statement on behalf of the Australian Government at the 17th session of the United Nations Working Group on Indigenous Populations, Minister for Aboriginal and Torres Strait Islander Affairs, Canberra, 29 July 1999, 7.

(107) Constitutional Convention, Communiqué, 13 February 1998, suggesting acknowledgment of ‘the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders.’

(108) Senator Ferris, Hansard—Senate, 27 November 2003, 17990–17991. See also: Department of Immigration, Multiculturalism and Indigenous Affairs, Fact Sheet No 3—Reconciliation, online at www.minister.immi.gov.au/atsia/facts/index.htm, accessed 20 January 2004.

(109) See the statistics in HREOC, Social Justice Report 2003 (Sydney: HREOC, 2003) ch 2.

(110) These were community leadership; reviewing and re-engineering programs and services to support families, children, and young people; and forging links between the business sector and indigenous communities to promote economic independence.

(111) Eight communities were chosen as pilot schemes. They were Murdi Paaki region (New South Wales); Wadeye (Northern Territory); Shepparton (Victoria); Cape York (Queensland); Anangu Pitjantjatjara Lands (South Australia); Northern Tasmania; East Kimberley region (Western Australia); and the Australian Capital Territory.

(112) HREOC, Social Justice Report 2002 (Sydney: HREOC, 2002), appendix sets out these agreements.

(113) See fully A Sharp, ‘The Maori Demand Justice 1966–1988’ (ch 1) and ‘Inequalities and Government Policies, 1960–1988’ (ch 10) in Justice and the Maori.

(114) Sharp, Justice and the Maori, 188–189.

(115) Metge, Maoris of New Zealand, 314–316.

(116) Maaka, ‘Perceptions, Conceptions and Realities’, above, 127–138 points out that Maori response was not wholly negative, but varied. Many supported at least some of the Report's recommendations, including the Maori Synod of the Presbyterian Church Synod, held in Whakatane, 1961.

(117) (1962) 322 New Zealand Parliamentary Debates at 2938–2949.

(118) In re the Bed of the Wanganui River [1955] NZLR 419 and [1962] NZLR 600 (CA).

(119) In re the Ninety Mile Beach [1963] NZLR 461 (CA). See Richard Boast, ‘In re the Ninety Mile Beach revisited: The Native Land Court and the Foreshore in New Zealand Legal History’ (1993) 23 Victoria University of Wellington L Rev 145.

(120) (1967) 353 New Zealand Parliamentary Debates 3657.

(121) For postcards from this period, columns written in the New Zealand Listener by a Maori activist and intellectual, see Ranginui Walker, Nga Tau Tohetohe: Years of Anger (Auckland: Penguin Books, 1989).

(122) The Treaty of Waitangi Act 1975, no 114, section 4.

(123) Treaty of Waitangi Amendment Act 1985, no 148, section 3.

(124) JD Sutton, ‘The Treaty of Waitangi Today’ (1981) Victoria University of Wellington L Rev 17, 34–39.

(125) Report of the Royal Commission on the Electoral System—Towards a Better Democracy (Wellington: Government Printer, 1986) 108–113.

(126) The Hon Geoffrey Palmer, A Bill of Rights for New Zealand—A White Paper (Wellington: Government Printer, 1985) 35–39.

(127) New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA); Tainui Maori Trust Board v Attorney-General [1989] 2 NZLR 513 (CA); Te Runanga o Muriwhenua Inc v Attorney-General [1990] 2 NZLR 641.

(128) [1987] 1 NZLR 641, 702 per Casey J.

(129) [1987] 1 NZLR 641, 663 per Cooke P.

(130) Ibid per Cooke P, 664.

(131) The alleged duty to consult was not argued in terms of a constitutional convention requiring consultation with, and the consent of, Maori to Maori affairs legislation. In the context of the litigation a broader, more open duty was being alleged.

(132) Ibid 683 per Richardson J.

(133) ‘The April Report’ : Report of the Royal Commission on Social Policy (4 vols, Wellington: Royal Commission on Social Policy 1988), II, 25–88.

(134) Sir Geoffrey Palmer, ‘The Treaty of Waitangi: Principles for Crown Action’ (1989) 19 Victoria of Wellington L Rev 335.

(135) Minister of Maori Affairs, Te Urupare Rangapu/Partnership Response (1988).

(136) Minister of Maori Affairs, He Tirohanga Rangapu: Partnership Perspectives (1988) 13.

(137) See Denese Henare, ‘The Ka Awatea Report: Reflection on its Process and Vision’ in M Wilson and A Yeatman (eds), Justice and Identity (St Leonards, NSW: Allen and Unwin, 1995) 45–60.

(138) Office of Treaty Settlements, Crown Proposals for the Settlement of Treaty of Waitangi Claims,8 December 1994.

(139) Ken Coates and PG McHugh, Kokiri Ngatahi = Living Relationships—The Treaty of Waitangi in the New Millennium (Wellington: Victoria University Press, 1998).

(140) Evidence before the Waitangi Tribunal in the Waipareira Claim indicated that hapu rather than iwi had taken the main contracting role for service delivery: Waiapareira Report, para 7.2.13.

(141) Te Puni Kokiri, Progress Towards Closing Social and Economic Gaps Between Maori and non-Maori (July 1998).

(142) The Hon Margaret Wilson, ‘New principles to guide the settlement of historical Treaty claims’ 20 July 2000, reported in [July 2000] Maori L Rev.

(143) AV Dicey, An Introduction to the Study of the Law of the Constitution (1st edn, London: Macmillan, 1885) ch 14–15.

(144) Republican, Colorado. Similar abbreviations in the customary US style are used later in this book.

(145) See Imre Sutton, ‘Not All Aboriginal Territory is Truly Irredeemable’ (2000) 24 American Indian Culture and Research Journal 129–162.

(146) Tim Rowse, ‘Do Indigenous Australians Have a Choice?’ Paper presented to The Power of Knowledge, the Resonance of Tradition—Indigenous Studies Conference 2001, Canberra: Australian National University, 18–20 September 2001.

(147) This is not to suggest that aboriginal people had not used the courts before, but to say that after the landmark cases the propensity increased considerably. Maori had used the Native Land Court in the late nineteenth century as a forum for established inter- and intra-tribal rivalries, a phenomenon that was in many ways replayed in the ordinary courts during the 1990s.

(147) Native Administration Act 1927.

(148) South African Constitution 1996, section 211 (customary law) and section 212 (tribal institutions). The subjection of these to the rest of the Constitution was opposed by customary law traditionalists who wanted customary law to be exempt from the Bill of Rights. They argued that subordinating tribal law to western-style constitutional rights was ethnocentric: Bede Harris, ‘Recognising Indigenous Law in Australia: Drawing on the African Experience’ in Charles Sampford and Tom Pound (eds), Beyond the Republic: Meeting the Global Challenge to Constitutionalism (Sydney: Federation Press, 2001) 270, 271, 276. That tension between western constitutionalism and traditional customary modes has occurred in the Australasian and American jurisdictions.