SOVEREIGNTY OF ABORIGINAL PEOPLES

Julie Cassidy"

It is for the people to determine the destiny of the territory and

not the territoy the destiny of the people.

I. INTRODUCTION

The relevance of establishing Aboriginal sovereignty is not confined

to the practical exercise of sovereign powers within a given jurisdiction. It
is also relevant to the judicial enforcement of rights. If, as suggested by
traditional theory, international law only pertains to the actions of sovereign2

* LL.B. (Hons), University of Adelaide, Ph.D., Bond University, Barrister and

Solicitor, Associate Professor, School of Law Deakin University, Geelong, Australia.
1. Western Sahara, 1975 I.C.J. 12, 122 (Oct. 16) (separate opinion of Judge Dillard).
2. Sovereignty has been defined as "the basic international legal status of a State that
is not subject, within its territorial jurisdiction, to the governmental, executive, legislative or
judicial jurisdiction of a foreign State or to foreign law other than public international law."
10 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 408 (1987). While often used
interchangeably with the notion of self-government, sovereignty is technically different. While
self-determination may give indigenous peoples many of the powers akin to sovereignty, it
does not necessarily ensure access to particular rights, such as independence. See U.N.
CHARTER art. 1, 2; International Covenant on Civil and Political Rights, Sept. 8, 1992, art.
1, 999 U.N.T.S. 171, 6 I.L.M. 368 (1967); International Covenant on Economic, Social and
Cultural Rights, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, art. 1, U.N. Doc.
A/6316 (1967); Declaration on the Granting of Independence to Colonial Countries and
Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66, U.N. Doe. A/4684
(1960); Discrimination Against Indiginous Peoples: First Revised Text of the Draft Universal
Declaration on the Rights of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.2/1989/33 (1989).
Cf. G. Nettheim, Sovereignty and AboriginalPeoples, 53 ABORIGINAL L. BULL. 4, 6 (1991)
(noting that self-determination "is a process" which allows peoples to make a choice between
a vast variety of relationships with the "occupying" state ranging from total integration to full
independence). See also Gudmundur Alfredsson, The Right to Self-Determination and Its
Many Manifestations, in THE RIGHTS OF INDIGENOUS PEOPLES IN INTERNATIONAL LAW:
SELECTED ESSAYS ON SELF-DETERMINATION 53 (R. Thompson ed., 1987); Ian Brownlie, The
Rights of Peoples in Modern InternationalLaw, in THE RIGHTS OF PEOPLES 5-6 (J. Crawford
ed., 1988); Lea Brilmayer, Secession andSelf-Determination:A TerritorialInterpretation, 16
YALE J. INT'L L. 177, 201-02 (1991); John H. Clinebell & Jim Thomson, Sovereignty and
Self-Determination:The Rights of Native Americans UnderInternationalLaw, 27 BUFF. L.
REV. 669 (1978); L. Kelly, Reconciliation and the Implicationsfor a Sovereign Aboriginal
Nation, 61 ABORIGINAL L. BULL. 10, 11 (1993). See generally Russell Barsh, Indigenous
Peoples and the Right to Self-Determination in InternationalLaw, in INTERNATIONAL LAW
AND ABORIGINAL HUMAN RIGHTS (Barbara Hocking ed., 1988); Elizabeth A. Pearce, Self-
Determinationfor Native Americans: Land Rights and the Utility of Domestic and International
Law, 22 COLUM. HUM. RTs. L. REV. 361 (1991).
 IND. INT'L & COMP. L. REv. [Vol. 9:1

states 3 and, perhaps as a corollary, only sovereign states are capable of

enforcing international law,4 establishing Aboriginal sovereignty will be a
necessary prerequisite to enforcing international legal rights. According to
the traditional view, international responsibility is owed to the state of which
the individual is a national, not the individual itself.' As it is the state's
right, and not the individual's, which has been infringed by a breach of
international law, only the state may enforce that right in the international
courts. The theorists supporting this proposition reason that the individual
is only an "object," not a "subject," of international law. 6 As a corollary,
according to the traditional theory, individuals have no international rights
and lack the necessary procedural capacity to enforce rights in an
international court of justice. Some jurists advocating the traditional view
submit that because of the lack of procedural capacity, 7 individuals and sub-
state collectives cannot be the direct beneficiaries of international rights.8
As a consequence of these traditional restrictions, individuals and
minority groups typically must rely on either the United Nations or their
"occupying" state to support and enforce any claims made in an international
forum for breaches of international law. Unless such groups can establish

3. Traditionally, municipal law is said to deal with the actions of individuals and the
domestic activities of sovereign states and international law with the international actions of
sovereign states. See H. LAUTERPACHT, RI-GLES GANtRALES Du DROIT DE LA PAIX 129
(1938). See also 2 L. OPPENHEIM, INTERNATIONAL LAW 344 (1st ed. 1905), the chief
exponent of the traditional theory who asserts that an "individual human being ... is never
directly a subject of International Law . . . . But what is the real position of individuals in
International Law, if they are not subjects thereof? The answer can only be that they are
objects of the Law of Nations." It is submitted, however, that this view is slowly being
discarded as state practice increasingly recognizes that individuals and groups of individuals
may be the direct beneficiaries of international rights, enforceable by either the individual or
other states. See also Philip C. Jessup, Subjects of a Modern Law of Nations, 45 MICH. L.
REV. 383, 403 (1947). A detailed discussion of the arguments for extending international law
to individuals cannot be considered within the scope of this article. See Julie Cassidy,
Customary International Law's Protection of Aboriginal Title in Post-Colonial Nations, ch.
20 (1993) (unpublished Ph.D. dissertation, Bond University, Queensland, Australia) (on file
with author).
4. The traditional view is reflected in the STATUTE OF THE INTERNATIONAL COURT OF
JUSTICE art. 34, 11 (Oct. 24, 1945), which provides "[o]nly States may be parties in cases
before the Court."
5. Except in rare cases where, for example, a treaty can be construed as giving rights
directly to individuals, or in cases of humanitarian intervention, other states have no interest
in the breach and consequently cannot enforce these rights on behalf of aggrieved individuals
or sub-state collectives. See Advisory Opinion No. 15, Jurisdiction of the Courts of Danzig
(Pecuniary Claims of Danzig Railway Officials Transferred to the Polish Service), P.C.I.J.
(ser. B) No. 15, at 17-21 [hereinafter Danzig]; 2 HUGO GROTIUS, DE JuRE BELLI AC PACIS
LIBRI TRES, chs. 8 & 25 (Francis Kelsey trans., Carnegie ed. 1925) (1646).
6. See generally OPPENHEIM, supra note 3.
7. See STATUTE OF THE INTERNATIONAL COURT OF JUSTICE art. 34, 11-3 (Oct. 24,
1945).
8. See generally HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW (Robert W.
Tucker ed., 2d ed. 1966).
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

that they have retained their sovereign rights and can be recognized as a
state, 9 they have no standing in, for example, the International Court of
Justice,'" and must turn to municipal courts" for relief.
The latter avenue of relief is not without risks. Unless the subject of
2 3
international law is a nonderogable rule ofjus cogens,' judicial practice

9. Even if Aboriginal sovereignty is accepted in accordance with the analysis of

international law contained in this article, the requirement of state recognition may
nevertheless pose a considerable hurdle to the exercise of those sovereign rights. In a similar
context, Bryant notes, "political recognition will no doubt turn on whether the State,
exercising sovereignty over a particular indigenous group, first recognizes their self-
determination status." Michael J. Bryant, Aboriginal Self-Determination: The Status of
CanadianAboriginal Peoples at InternationalLaw, 56 SASK. L. REV. 267, 269 (1992). Cf.
S.A. Williams, InternationalLegal Effects of Secession by Quebec, in YORK UNIVERSITY
CENTRE FOR PUBLIC LAW AND PUBLIC POLICY, FINAL REPORT OF THE YORK UNIVERSITY
CoNsTITuTIoNAL REFORM PROJECT, STUDY No. 8, at 11-12 (1992). See also the comments
of Frank Brennan, Mabo and Its Implicationsfor Aborigines and Torres Strait Islanders, in
MABO: A JUDICIAL REVOLUTION 24, 26-27 (M. A. Stephenson & Suri Ratnapala eds., 1993).
Given the current climate in countries such as Canada and Australia, it is unlikely that claims
of Aboriginal sovereignty would be supported by the "occupying" state. This is particularly
so where the claims to sovereignty are in a form that threatens the "occupying" state's
territorial integrity. In this regard Bryant notes that, as a matter of political reality, as
opposed to legal theory, an "occupying" "State's territorial integrity will almost always trump
the wishes of a minority of citizens." Bryant, supra, at 268. See generally Kelly, supra note
2 (discussing the alternative ways that sovereignty may be exercised or accommodated).
10. See STATUTE OF THE INTERNATIONAL COURT OF JUSTICE art. 34, 1 (Oct. 24,
1945).
11. Note, traditionally, under the dualist view, municipal and international law are said
to operate in two distinct spheres; the former dealing with the actions of individuals and the
domestic activities of sovereign states and the latter with the international actions of these
sovereign states. See 1 DIONISIO ANZILOTTI, CORSO DI DIRITTO INTERNAZIONALE 43 (3d ed.
1928). See also generally HEINRICH TRIEPEL, VOLKERRECHT UND LANDESRECHT (1899).
Under the alternative monist view, however, these bodies of law are not seen as being
discrete. See KELSEN. supra note 8, at 553-88. See generally WILLIAM BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND, ch. 5 (8th ed. 1778); 1 OPPENHEIM, supra note
3, ch. 4; J.G. STARKE, AN INTRODUCTION TO INTERNATIONAL LAW (7th ed. 1972); supra
discussion note 3. For a discussion of how customary international law flows into domestic
legal forums and may be enforced by individuals in municipal courts, see Lord Atkin's
comments in Chung Chi Cheung v. The King [1939] App. Cas. 160, 167-68 (P.C. 1938)
(appeal taken from H.K.). A detailed discussion of the arguments for applying international
law in the municipal courts cannot be considered within the scope of this article. See generally
Cassidy, supra note 3, ch. 21. As to the validity of the monist view, see generally Filartiga
v. Pena-Irala,630 F.2d 876 (2d Cir. 1980).
12. These are nonderogable norms reflecting principles crucial to maintaining the
international legal order. See Antonio Cassese, The Self-Determination of Peoples, in THE
INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 92, 111
(Louis Henkin ed., 1981). They cannot be derogated from by treaty, protest, or acquiescence.
Any agreements or actions contrary to such a law are absolfttely void. See id. Not even
prescription can purge a breach of a rule of jus cogens. These laws can only be replaced or
modified by a subsequent norm of the same peremptory character, a subsequent norm of jus
cogens. A detailed discussion of jus cogens cannot be considered within the scope of this
article. For a discussion of jus cogens, see Christopher P. Cline, PursuingNative American
 IND. INT'L & COMP. L. REV. [Vol. 9:1

suggests that inconsistent domestic law can prevail over international law in
the municipal arena. 4 If a legislature's intent to legislate inconsistently with
international law'" is evident from the face of municipal legislation,
municipal courts are bound to give effect to that legislation. 6 As Lord
Porter noted in Theophile v. Solicitor-General:

[There is a presumption] that Parliament does not assert or

assume jurisdiction which goes beyond the limits established by
the common consent of nations. On the principles already stated,
however, this presumption must give way before an intention
clearly expressed .... Statutes are to be interpreted, provided
that their language admits, so as not to be inconsistent with the
comity of nations. [However, if the] statutory enactments are
clearly inconsistent with international law, they must be so
construed, whatever the effect . . . within the jurisdiction may
17
be.
A violating state could, therefore, prevent Aboriginal claimants from
enforcing international rights in its municipal courts with relative ease by

Rights in InternationalLaw Venues: A Jus Cogens Strategy after Lyng v. Northwest Indian
Cemetery Protective Association, 42 HASTINGs L.J. 591, 619-24 (1991). For the author's
discussion of this matter, see Cassidy, supra note 3, ch. 26.
13. In contrast to judicial practice, academics give primacy to international law. See
generally HERSCH LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS (1973);
Cassidy, supra note 3, ch. 21.
14. According to this view, international law prevails, but only "so far as it is not
inconsistent with rules enacted by statutes or finally declared by their tribunals." Chung Chi
Cheung [1939] App. Cas. at 167-68.
15. There is a strong presumption against such inconsistency. Domestic legislation is
to be construed to avoid conflict with international norms. As the Court declared in Murray
v. The Schooner CharmingBetsy, "an act of Congress ought never to be construed to violate
the law of nations if any other possible construction remains." 6 U.S. (2 Cranch) 64, 118
(1804). "In cases admitting of doubt, the presumption would be that Parliament intended to
legislate without violating any rule of international law . . . . " The Annapolis [1861] 1 Lush.
295, 306 (Can.). See, e.g., McCulloch v. Sociedad Nacional, 372 U.S. 10, 21 (1963); The
Antelope, 23 U.S. (10 Wheat.) 66, 116-18 (1825); Peters v. McKay, 238 P.2d 225, 231 (Or.
1951). reh'g denied, 246 P.2d 535 (Or. 1952); The Queen v. Foster (1959) 104 C.L.R. 256,
307 (Austl.); Polites v. Commonwealth (1945) 70 C.L.R. 60, 68-81 (Austl.); In re Noble &
Wolf [1948] 4 D.L.R. 123, 139 (Can.); In re Arrow River & Tributaries Slide & Boom Co.
[1932] 2 D.L.R. 250, 259-61 (Can.); Theophile v. Solicitor-General [1950] App. Cas. 186,
195-96 (1949) (appeal taken from Eng.); Croft v. Dunphy [1933] App. Cas. 156, 162-63 (P.C.
1932) (appeal taken from Can.); In re Republic of Bolivia Exploration Syndicate Ltd., I Ch.
139 (1914) (Eng.); The Queen v. Keyn, 2 Ex. D. 63, 85 (1876) (Eng.). Cf. The Queen v.
Carr, 10 Q.B.D. 76 (1882).
16. See, e.g., Foster, 104 C.L.R. at 307; Theophile, [1950] App. Cas. at 195-96; Keyn,
2 Ex. D. at 85.
17. Theophile, [1950 App. Cas. at 195-96 (quoting 31 HALSBURY'S LAWS OF ENGLAND
508-09 (2d ed. 1938)). See, e.g., Foster, 104 C.L.R. at 307; Keyn, 2 Ex. D. at 85.
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

enacting inconsistent domestic legislation." Consequently, the existence of

Aboriginal sovereignty is important not only to the enjoyment of sovereign
rights, but to the enforcement of any rights founded in international law. 9
The sovereignty of indigenous populations has long been a matter of
great dispute and continues to be one of the most burning issues in domestic
and international law today.2 Contrary to popular belief, international law,
both in the past and today, is not entirely eurocentric and "amoral," 2' and
historically many international jurists have been sympathetic to protecting
Aboriginal sovereignty and territorial rights. 22 To this end, state practice
reveals a consistent recognition of the legal incidents stemming from
Aboriginal occupation of land.23 International law generally acknowledged
the sovereignty of these peoples and saw indigenous possession as preventing
land from being classified as terra nullius, or open to acquisition by mere
occupation.24
The international law doctrine of reversion also provides for the
continuance and ultimate resurrection of these sovereign rights after
purported acquisitions by European imperial forces. Under this doctrine,
despite the pretense of effective occupation, the sovereign rights of
Aboriginal people lie dormant awaiting reversion. It is this sovereignty' that

18. A state which so acts breaches international law and may as a consequence be subject
to international sanction. See Advisory Opinion No. 10, Exchange of Greek and Turkish
Populations, 1925 P.C.I.J. (ser. B) No. 10, at 20.
19. For example, the author has suggested that customary international law recognizes
and protects Aboriginal title. See generally Cassidy, supra note 3.
20. For an example of such a dispute, see the controversy that stemmed from the
decision in Alaska v. Native Village of Venetie Tribal Gov't, 101 F.3d 1286 (9th Cir. 1996)
(upholding the Venetie's sovereign rights), rev'd, 118 S. Ct. 948 (1998).
21. See, e.g., JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW
173 (1979).
22. Perhaps the most famous being Francisco de Vitoria, De Indis et de lyre Belli
Relectiones [Reflections on the Indians and on the Law of War], in CLASSICS OF
INTERNATIONAL LAW (James Scott ed., 1917) (1557). See also Rachel San Kronowitz et al.,
Toward Consent and Cooperation: Reconsidering the PoliticalStatus of Indian Nations, 22
HARV. C.R-C.L. L. REV. 507 (1987); G. Marks, Indigenous Peoples in International Law:
The Significance of Francisco de Vitoria and Bartoleme de las Casas (1990) (unpublished
thesis, Faculty of Law, Australian National University) (on file with author).
23. See Cassidy, supra note 3.
24. Under modern international law it is unlawful to purport to acquire sovereign and
territorial rights through conquest or settlement of occupied lands. See, e.g., U.N. CHARTER
art. 2, 1-4; Western Sahara, 1975 I.C.J. 12, 123 (Oct. 16) (separate opinion of Judge
Dillard); Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16,
91 (June 21) (separate opinion of Vice-President Ammoun) [hereinafter Namibia].
25. Some authors have suggested natural law as an alternative source of sovereign rights.
See Brian Slattery, Aboriginal Sovereignty and Imperial Claims, 29 OSGOODE HALL L.J. 681,
696-703 (1991).
 IND. INT'L & COMP. L. REV. [Vol. 9:1

the Aboriginal peoples call to be recognized today.26

This article considers international law's recognition of Aboriginal
sovereignty.27 The status of Aboriginal peoples in international law involves
many difficult questions relating to the acquisition of territory and the
recognition of Aboriginal sovereignty. In Part II, a number of doctrines2"
often put forward as barriers to claiming Aboriginal sovereignty are
considered and it is submitted that these doctrines do not preclude claims
from being successfully made. Part III examines issues that more closely
pertain to international law's recognition of Aboriginal sovereignty. This
includes a discussion of international law's recognition of Aboriginal
occupation and sovereignty. Part IV concludes with a discussion on the

26. For example, the Chairman of the Northern Land Council, Mr. Galarrwuy
Yunupingu declared in 1987: "Aboriginal People are the indigenous sovereign owners of
Australia and adjacent islands since before 1770 and as such have rights and treaty rights.
Their Sovereignty has never been ceded. . . ." B. Weatherall, Foundation of Aboriginalsand
Islander Research Action, WKND. AUSTL., June 30-July 1, 1990, at 21. See generally
STANDING COMMITTEE ON CONSTITUTIONAL AND LEGAL AFFAIRS (AUSTL.), Two HUNDRED
YEARS LATER, 1 2.6 (1983) [hereinafter STANDING COMMITTEE]. The Standing Committee
stated:
We have never conceded defeat and will continue to resist this on-going attempt
to subjugate us .... The Aboriginal people have never surrendered to the
European invasion and assert that sovereignty over all Australia lies with them.
.. [W e demand that the colonial settlers who have seized the land recognize
this sovereignty and on that basis negotiate their right to be there.
Id. That the Aboriginal peoples of Australia have "neither ceded their lands to the Crown nor
suffered them to be taken as the spoils of conquest" was recognized by the High Court of
Australia. Mabo v. Queensland (1992) 175 A.L.R. 1, 29 (Austl.). In July 1990, members
of the Australian Aboriginal Community established an Aboriginal Provisional Government
representing the Aboriginal peoples claims to sovereign rights. It was established in response
to the need for "a new national structure which, by its very name will tell the world we are
a sovereign people, fighting for our sovereign rights." Weatherall, supra. See generally
Kelly, supra note 2; N. Pearson, Reconciliation to Be or Not to Be, 61 ABORIGINAL L. BULL.
14 (1993). With respect to Canadian Aboriginal peoples, see Speaking Notes for National
Chief, Ovide Mecredi, in CONSTITUENT ASSEMBLY ON THE RENEWAL OF CANADA, IDENTITY,
RIGHTS AND VALUES: SPEECH BEFORE THE ASSEMBLY OF FIRST NATIONS (1992) (calling for
the recognition of their "collective rights" and respect for their "cultures, languages,
governments and spirituality"). See also MICHAEL AsCH, HOME AND NATIVE LAND:
ABORIGINAL RIGHTS AND THE CANADIAN CONSTITUTON 29 (1984); Michael Asch, Aboriginal
Self-Government and the Construction of Canadian ConstitutionalIdentity, 30 ALTA. L. REV.
465, 491 (1992).
27. The following discussion will concentrate on Aboriginal sovereignty, rather than the
right to self-determination. Some of the discussion will nevertheless advert to the latter
doctrine. See supra text accompanying note 2 for a brief discussion of the meaning of
sovereignty.
28. Other doctrines asserted as preventing claims of Aboriginal sovereign rights have
also been introduced previously in this article. In particular, see supra notes 3-11 and
accompanying text for a discussion of the applicability of international law to individuals and
sub-state collectives. See supra notes 11-19 and accompanying text for a discussion of the
enforceability of international law in municipal courts.
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

ability of Aboriginal communities to reclaim their sovereignty today.

II. DOCTRINES LIMITING CLAIMS OF SOVEREIGNTY

A. IntertemporalRule

A necessary preliminary to discussing international law's recognition

of Aboriginal sovereignty is an appreciation of its practical relevance today.
An academic discussion of the works of legal jurists is of little value if other
international law doctrines prevent Aboriginal sovereignty from being
invoked. At times, the intertemporal rule29 has been mistakenly interpreted
as requiring the validity of sovereign rights to be determined in light of the
law prevailing at the time of the original acquisition of land,3" rather than the
critical point3 of any later dispute. This erroneous application of the rule
has allowed "occupying" governments to attempt to validate their occupation
on mistaken32 assertions that international law, at the time of their initial
settlement or conquest of Aboriginal lands, validated the acquisition of
sovereign and territorial rights.
It is submitted below that, as of the date of the purported acquisition
of sovereign and territorial rights over countries such as Australia, Canada,
and the United States of America, international law recognized Aboriginal
occupation and sovereignty in a manner that would negate the legitimacy of
claims of sovereign title based on, for example, the settlement of these lands.
If, however, this interpretation of international law is erroneous, it is
contended that the legitimacy of these governments' sovereignty can
nevertheless be questioned pursuant to the intertemporal rule.
For some reason, "occupying" governments have failed to recognize
that under this rule international law at the time of the purported annexation
does not provide the only source of legal authority for determining the
existence of Aboriginal sovereign rights and, thus, the validity of any
purported acquisition.33 Most importantly, the intertemporal rule requires
rights which are perpetually exercised to continue to conform with

29. A comprehensive discussion of this notion is beyond the scope of this article. For
a more complete discussion, see Cassidy, supra note 3, ch. 25.
30. See, e.g., STANDING COMMITTEE, supra note 26, 1 3.36; Coe v. Commonwealth
(1979) 53 A.L.J.R. 403 (Austl.); Milirrpum v. Nabalco Party Ltd. (1971) 17 F.L.R. 141
(Austl.); Cooper v. Stuart [1889] 14 App. Cas. 286 (P.C. 1889) (appeal taken from N.S.W.).
31. See Minquiers and Ecrehos (Fr. v. U.K.), 1953 I.C.J. 47, 59 (Nov. 17).
32. It is submitted below that international law at the time of the purported acquisitions
recognized Aboriginal sovereignty and thus would not support claims of a valid acquisition of
sovereignty.
33. It could be suggested that it is an engineered falsehood designed to discourage claims
for Aboriginal sovereignty. See also Coe, 53 A.L.J.R. at 429 (setting forth Justice Murphy's
suggestion that statements supporting the "settlement" of Australia were "made in ignorance
or as a convenient falsehood to justify the taking of aborigines' land").
 IND. INT'L & COMP. L. REv. [Vol. 9:1

international law as it develops. The validity of these rights must be

considered in light of international law as it stands at the "critical date" of
the dispute.34 Thus, as Arbitrator Huber noted in Island of Palmas, through
the intertemporal rule, international legal developments can retrospectively
invalidate or detract from sovereign rights, even though these rights may
have been legitimately obtained according to international law at the time of
the original annexation.35
Accordingly, as sovereign and territorial rights must be continually
asserted, their legitimacy must be determined in accordance with
international law as it develops, recognizing the demise of old principles of
law and the evolution of new axioms acknowledging the rights of Aboriginal
peoples. Consequently, even if state practice at the date of annexation did
not recognize Aboriginal sovereignty, in the absence of protest by a state,
and arguably even in such cases,36 it is international law as it stands at the
critical date37 which determines the rights of the subject Aboriginal peoples.
Thus, if the sovereign rights of "occupying" states were by modern
standards wrongly acquired, they must not only be effectively exercised
throughout the period of occupation, but also "re-acquired" in accordance
with these modern international developments. This is especially so if the
emerging international law recognizing Aboriginal territorial and sovereign
rights is a peremptory norm of jus cogens,38 which may require the
39
restitution of those rights purportedly acquired by the "occupying" state.
To this end, it is important to note that under modem international law the
acquisition of sovereignty in the subject countries would clearly be unlawful.
Conquest is no longer a legal basis for acquiring sovereign rights, except in

34. The critical date of a dispute is the point in time at which the merits of the parties'
claims are determined. At this point the situation between the parties is said to have
"crystalized" and the actions of the parties after that date cannot change the legal position
between the parties. See Minquiers and Ecrehos, 1953 I.C.J. at 59. For example, in
Minquiers and Ecrehos, there had been prior disagreements between the parties, but these had
not been linked to the question of sovereignty. See id. The relevant dispute had not,
therefore, "crystalized" before the special agreement of December 29, 1950. See id. By
contrast, the critical date was much earlier in the nineteenth century, when the Treaty of Paris
attempted to cede the Philippines to the United States. See Arbitral Award Rendered in
Conformity with the Special Agreement Concluded on January 23, 1925 Between the Unitded
States of America and the Netherlands Relating to the Arbitration of Differences Respecting
Sovereignty Over the Island of Palmas (or Miangas) (U.S. v. Neth.), 2 R.I.A.A. 829 (Perm.
Ct. Arb. 1928), reprinted in 22 AM. J. INT'L L. 867, 872-73 (1928) [hereinafter Island of
Palmas].
35. See generally Island of Palmas, 22 AM. J. INT'L L. 867 (1928).
36. If these principles are nonderogable principles ofjus cogens, even protest will not
undermine their effectiveness. See discussion supra note 12.
37. See discussion supra note 34.
38. These are nonderogable norms that are crucial to maintaining the international legal
order. See discussion supra note 12.
39. Restitution of the purportedly acquired rights supports the reversion of sovereignty.
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

the case of a just war,4 and sovereign rights to occupied lands may not be
4
acquired by mere settlement. '

B. Act of State

1. Common Law Courts

As with the intertemporal rule, the act of state doctrine42 has been used
in Australia to discourage Aboriginal claims to sovereign rights. Under this
doctrine, certain executive acts are declared to be questions of law, rather
than fact, which are determined by the executive and thus cannot be
subsequently reviewed by the judiciary. 43 Even supporters of the
"Aboriginal cause," such as Frank Brennan, have asserted that a claim of
Aboriginal sovereignty is "unarguable" as it "is a political claim, not a
justiciable legal claim in either international or domestic courts.""
Similarly, the High Court of Australia has held that the validity of the
Australian Crown's acquisition of sovereignty is a nonjusticiable act of
state.45

40. See U.N. CHARTER art. 2, 4; D. SANDERS, THE RE-EMERGENCE OF INDIGENOUS

QUESTIONS IN INTERNATIONAL LAW 26-27 (1983).
41. See generally Western Sahara, 1975 I.C.J. 12 (Oct. 16).
42. A comprehensive discussion of the act of state doctrine and its United States
equivalent cannot be undertaken here. See Cassidy, supra note 3, ch. 22 for a discussion of
the act of state doctrine. It has also been suggested that an independent doctrine, known as
the political question doctrine, may prevent the consideration of a dispute because of its
political nature. Thus, in South Australia v. Commonwealth, Chief Justice Dixon stated that
a distinction had to be drawn between, "on the one hand, the exercise of the jurisdiction
reposed in the Court and, on the other hand, an extension of the Court's true function into a
domain that does not belong to it, namely, the consideration of undertakings and obligations
depending entirely on political sanctions." (1962) A.L.R. 547, 548 (Austl.). In that case
there was no legal standard available to the Court to determine the dispute as the dispute was
based on a political agreement, rather than a legal contract. See generally id. Where,
however, legal standards, such as international law, exist for determining the dispute, the
courts can turn to these tenets to decide the case; they do not have to make a political
judgment. See Cassidy, supra note 3, ch. 22. It will be seen that the sentiments underlying
the political question doctrine are echoed in the United States act of state doctrine.
43. See generally Secretary of State v. Kamachee Boye Sahaba, 15 Eng. Rep. 9 (P.C.
1859) (appeal taken from Madras). Cf. S.A. DE SMITH, CONSTITUTIONAL AND
ADMINISTRATIVE LAW 135 (2d ed. 1973).
44. See Brennan, supra note 9, at 26. See also Frank Brennan, The Year of Living
Harmoniously, AUSTL., Apr. 1, 1992, at 5.
45. See, e.g., Wik Peoples v. Queensland (1996) 141 A.L.R. 129, 250 (Austl.); Mabo
v. Queensland (1992) 175 C.L.R. 1, 32-33, 78-79, 95, 138 (Austl.); Coe v. Commonwealth
(1979) 53 A.L.J.R. 403, 408, 410-11 (Austl.); New South Wales v. Commonwealth (1975)
135 C.L.R. 337, 338 (Austl.). Thus, in Coe, Justice Gibbs held that the classification of the
Australian continent was so "fundamental to our legal system" that a claim of Aboriginal
sovereignty was not fit for consideration. Coe, 53 A.L.J.R. at 408. He declared "the
question is not how the manner in which Australia became a British possession might
appropriately be described," but how the Crown decided to classify the colony. Id. Justice
 IND. INT'L & COMP. L. REV. [Vol. 9:1

Thus, it is necessary to consider whether the common law act of state

doctrine and its United States equivalent prevents Aboriginal claimants from
asserting their sovereign rights in a judicial forum. Before the municipal
application of these doctrines is considered, it is important to note that
contrary to Brennan's suggestion, the act of state doctrine does not bar a
matter being litigated in an international forum. Western Sahara4 6 indicates
that questions pertaining to sovereign and territorial rights47 will be
considered by the International Court of Justice.4 Moreover, despite the

Jacobs also asserted:

the statement of claim . . . apparently intended to dispute the validity of the
British Crown's and now the Commonwealth of Australia's claim to sovereignty
over the continent of Australia .... These are not matters of municipal law but
the law of nations and are not cognizable in a Court exercising jurisdiction
under that sovereignty which is sought to be challenged.
Id. at 411. In Mabo, Justice Brennan declared that the annexation of the Murray Islands was
a prerogative act "the validity of which is not justiciable in the municipal courts." Mabo, 175
C.L.R. at 32. Similarly, Justice Dawson asserted that the annexation "was an act of state by
which the Crown in right of the Colony of Queensland exerted sovereignty over the islands.
•.. [Tihere can be no doubt that it was, and remains, legally effective." Id. at 138 (footnote
omitted). For similar conclusions, see the comments in Wik Peoples, 141 A.L.R. at 289-90.
In Wik Peoples, Justice Kirby stated that the subject dispute was "not ...a matter for legal
but only for political redress." Id. at 290 (footnote omitted). See also Milirrpum where
Justice Blackburn held that the classification of the annexation of the Australian continent was
a matter of law, not fact, and was not open to judicial review. Milirrpum v. Nabalco Party
Ltd. (1971) 17 F.L.R. 141, 243 (Austl.).
46. 1975 I.C.J. 12 (Oct. 16). The question in this case was whether the Western Sahara
was terra nullius at the time of colonization. See id. at 14. The lawfulness of Spain's
acquisition of sovereignty over the subject territory was not considered. See id. at 123
(separate opinion of Judge Dillard). Cf. Rosalie Balkin, InternationalLaw and Sovereign
Rights of Indigenous Peoples, in INTERNATIONAL LAW AND ABORIGINAL HUMAN RIGHTS 19,
33 (Barbara Hocking ed., 1988).
47. These concepts include the reversion of sovereignty. See infra Part IV for a
discussion of the reversion of sovereignty.
48. Problems pertaining to standing would, however, have to be overcome. As noted
earlier, only "States may be parties in cases before the Court." STATUTE OF THE
INTERNATIONAL COURT OF JUSTICE art. 34, 1 (Oct. 24, 1945). Thus, to bring a claim in
this court an Aboriginal claimant would have to establish statehood. To some degree this gives
rise to what may be colloquially called a "chicken or egg" problem. While the claimant is
seeking to have the existence of Aboriginal sovereignty determined by the court, to have
standing the claimant needs to establish Aboriginal sovereignty. One way of avoiding this
circularity is to have the International Court of Justice, at the request of the General Assembly
or the Security Council of the United Nations, give an advisory opinion on the matter. See
U.N. CHARTER art. 96, 1. See also U.N. CHARTER art. 65 (allowing the Economic and
Social Council to furnish information to the Security Council and requiring the Economic and
Social Council to assist the Security Council upon the Security Council's request). While such
an opinion would not be legally binding on the "occupying" state, it would provide strong
political impetus for the recognition of Aboriginal sovereignty. Note, the factual nature of
such a consideration would not prevent the International Court of Justice determining the
matter as long as the dispute involved mixed questions of law and fact. See Western Sahara,
1975 I.C.J. 12, 19 (Oct. 16). See generally Namibia, 1971 I.C.J. 16 (June 21).
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

possible ramifications in the domestic arena,4 9

such a determination would
be effective in the municipal legal system to the extent that international law
becomes operative in that forum.
Even in the domestic context, the act of state doctrine has its limits and
may not always be used by a government to prevent a judicial consideration
of a particular matter. First, not all government acts are acts of state.50 At
common law, the term "act of state" connotes a variety of acts carried out
in pursuance of the royal prerogative. However, not all prerogative acts are
acts of state." Only those acts which are "part of or necessarily incidental
to a high-level policy decision (and possibly other acts expressly ratified by
the Crown) will be treated as acts of state." 2 While the annexation of a
country falls within this category of executive acts 5 3 it has been suggested
that the act of state doctrine does not prevent an examination of the state of
the relevant law at the time of the purported annexation. Thus, in Coe v.
Commonwealth, while Justice Jacobs, along with the other members of the
High Court of Australia, held that the validity of the actual acquisition of
Australia was not justiciable, he asserted that its quality in point of common
law theory was open to consideration. 4 What the law declares on a matter
is not an act of state. Thus, a court could make a finding upon, for example,

49. However, "[n]othing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the domestic jurisdiction of any
state." U.N. CHARTER art. 2, 7. In practice, article 2, paragragh 7 has not prevented the
United Nations from taking action with respect to breaches of human rights and the furtherance
of the right to self-determination within a state's "domestic" jurisdiction. See IAN BROWNLIE,
PRINCIPLES OF PUBLIC INTERNATIONAL LAW 294 (3d ed. 1979).
50. There is no concise definition of act of state. See DE SMITH, supra note 43, at 135.
For example, the Court of Appeals, Civil Division was unable to reach a majority view as to
the definition of act of state in Nissan v. Att'y Gen., 2 All E.R. 1238 (C.A. 1967).
51. For a discussion of the distinction drawn between prerogative powers and acts of
state, see Commercial and Estates Co. of Egypt v. Board of Trade, 1 K.B. 271, 294-97 (C.A.
1925).
52. See DE SMITH, supra note 43, at 137. In most cases these are high "exercise[s] of
sovereign power." Salaman v. Secretary of State, 1 K.B. 613, 639 (C.A. 1906).
53. See, e.g., Mabo v. Queensland (1992) 175 C.L.R. 1, 32-33, 78-79, 95, 138
(Austl.); In re Phillips (1987) 72 A.L.R. 508, 510-11 (Austl.); Coe v. Commonwealth (1979)
53 A.L.J.R. 403, 408, 410 (Austl.); New South Wales v. Commonwealth (1975) 135 C.L.R.
337, 338 (Austl.) (Gibbs, J., dissenting); Nissan v. Att'y Gen., 2 All. E.R. 1238, 1246 (H.L.
1967). See also supra text accompanying note 43. In New South Wales, Justice Gibbs stated
that the "acquisition of territory by a sovereign state for the first time is an act of state which
cannot be challenged, controlled or interfered with by the courts of that state." New South
Wales, 135 C.L.R. at 338 (Gibbs, J.,dissenting). Justice Gibbs repeated this view in Coe
where he stated that the "annexation of the east coast of Australia by Captain Cook in 1770,
and the subsequent acts by which the whole of the Australian continent became part of the
dominions of the Crown, were acts of state whose validity cannot be challenged." Coe, 53
A.L.J.R. at 408.
54. Coe, 53 A.L.J.R. at 411.
 IND. INT'L & COMP. L. REv. [Vol. 9:1

the law governing the classification of land as terra nullius" or whether

international law recognized the sovereign rights of Aboriginal peoples. This
could in turn provide the impetus for the political recognition of Aboriginal
sovereignty.
Second, a plea of act of state cannot be made against a subject or
resident alien.5 6 The rationale underlying the differential application of the
plea rests upon the notion that those who owe allegiance to the Crown are
entitled to the protection of, or from, the Crown and are not, therefore, to
be barred from making legitimate claims through the plea of act of state .57
By contrast, the plea may be made against foreigners, for they do not owe
allegiance to the Crown and can look to their own government for redress.
According to the principles governing the annexation of territory, the
indigenous inhabitants of lands acquired by "settlement" 58 are considered
subjects of the state.59 Consequently, if the annexation of Australip,
Canada, 6' New Zealand, 2 and the United StatesP3 is taken to be by

55. A discussion of terra nullius is reserved for later portions of this article. See
discussion supra, Part III(A).
56. See Nissan, 2 All E.R. at 1246. See generally Walker v. Baird, 1892 App. Cas. 491
(P.C. 1892) (appeal taken from Nfld.).
57. See DE SMITH, supra note 43, at 139.
58. Note that in In re Phillips, Justice Neaves held:
[t]he question whether the colony of New South Wales was acquired by
settlement or by conquest would have significance in determining whether
the common law was introduced into the newly acquired territory. But,
in my opinion, the distinction has no significance in determining whether,
in 1987, descendants of those who in 1770 or 1788 were inhabitants of
what became the colony of New South Wales . . .are subject to laws
enacted by the Commonwealth Parliament in exercise of the powers
conferred upon it by the Constitution.
In re Phillips (1987) 72 A.L.R. 508, 512 (Austl.).
59. See The Queen v. Wedge (1976) 1 N.S.W.L.R. 58 (Austl.); The King v. Murrell,
(1836) Legge 72 (Austl.), reprinted in A SELECTION OF SUPREME COURT CASES IN NEW
SOUTH WALES 72, 73 (1896). See also In re Phillips, 72 A.L.R. at 511-12; Coe v.
Commonwealth (1979) 53 A.L.J.R. 403, 408 (Austl.). In Coe, Justice Gibbs asserted that
"[the Aboriginal people are subject to the laws of the Commonwealth and of the States or
Territories in which they respectively reside." Id.
60. See Mabo v. Queensland (1992) 175 C.L.R. 1, 33, 180 (Austl.); Coe, 53 A.L.J.R.
at 408; Milirrpum v. Nabalco Party Ltd. (1971) F.L.R. 141, 243 (Austl.); Cooper v. Stuart,
14 App. Cas. 286, 291 (P.C. 1889) (appeal taken from N.S.W.). Note in Coe, Justices
Murphy and Jacobs held that it was open to an Aboriginal claimant to argue that Australia was
acquired by conquest. Justice Murphy asserted that the plaintiff was "entitled to endeavour
to prove ...that the lands were acquired by conquest, and to rely upon the legal consequences
which follow[ed]." Coe, 53 A.L.J.R. at 412. Similarly, Justice Jacobs held that "[tihe
plaintiff should be entitled to rely on the alternative arguments [to the settled classification]
when it comes to be determined whether the Aboriginal inhabitants of Australia had and have
any rights in land." Id. at 411. See also In re Phillips, 72 A.L.R. at 511-12.
61. See, e.g., Van der Peet v. The Queen [1996] 137 D.L.R. 4th 289, 330 (Can.); The
Queen v. Sparrow [19901 70 D.L.R. 385, 401 (Can.); Calder v. Att'y Gen. of British
Columbia [1973] S.C.R. 313, 328-29, 383, 401-02 (Can.). See generally Patrick Macklem,
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

settlement, as the courts have largely characterized such acquisitions, the act
of state doctrine may not be utilized by the Crown to prevent Aboriginal
claims.
It may be thought that Aboriginal peoples' denials of any allegiance to
the Crown' may serve to negate this principle and allow the act of state
doctrine to be plead against Aboriginal claimants as if they were foreigners.65
However, if the status of a subject is automatically accorded to the
Aboriginal peoples of a "settled" country as a matter of law, this status
would be unaffected by claims of non-allegiance. The latter mode of
reasoning is supported by the Australian judiciary's insistence that English
or Australian law applies to all subjects,66 including Aboriginal occupants,67
despite claims that the courts have no jurisdiction over Aboriginal persons.68
Even if the subject countries were acquired by conquest, the act of state
doctrine still could not be plead against the traditional indigenous occupants.
Aliens living within Her Majesty's dominions are said to owe local allegiance

Normative Dimensions of an Aboriginal Right of Self-Government, 21 QUEEN'S L.J. 173

(1995).
62. It has been suggested that the North Island of New Zealand was acquired by conquest
and that the South Island was acquired by settlement. In this regard, note Lieutenant-Governor
Hobson's Proclamation of May 21, 1840, declaring the South Island to have been acquired by
settlement, while the North Island by cession. Fears of French occupation led the British to
hurriedly declare the South Island to be taken by settlement and to set up around the country
"dummy" signs of occupation.
63. See Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823).
64. In Murrell, defense counsel Stephens questioned the court's jurisdiction over
Aboriginal offenders in cases of offenses inter se. See The King v. Murrell, (1836) Legge 72
(Austl.). Utilizing Rousseau's social contract theory, Counsel Stephen's argued that as the
defendants had not consented to the Crown's sovereignty, they were not amenable to the
Crown's law. See id. As the Crown had failed to protect Aboriginal persons and property,
consent could not be implied and, consequently, there was no legitimate basis for subjecting
the defendants to the rigors of the Crown's laws. See id. Stephens also submitted that
Australia was neither conquered, ceded nor settled; the Australian colonists just "moved" into
Aboriginal society. See id. Consequently, the laws of England did not flow into the colony
to govern the actions of all inhabitants. As the colonists moved into Aboriginal society they
should be subject to Aboriginal customary law, rather than vice versa. See id. As noted
above, the submission failed. For a more recent example of a refusal to accept that an
Aboriginal person was not subject to the laws of Australia, see In re Phillips, 72 A.L.R. at
511-12.
65. See generally the discussion of this matter in Coe v. Commonwealth (1979) 53
A.L.J.R. 403 (Austl.).
66. See In re Phillips, 72 A.L.R. at 511-12; Wedge, (1976) 1 N.S.W.L.R. at 581; The
King v. Murrell (1836) Legge 72, 72-73 (Austl.).
67. The inclusion of Aboriginal occupants has been confirmed in multiple governors'
instructions and proclamations. See, e.g., Proclamation28 Dec. 1836, SOUTH AUSTRALIAN
GAZETTE & COLONIAL REGISTER, June 3, 1837. See also Governor Macquarie's
Proclamation to the Aboriginals, 13-14 (HRA ver. 1, vol. 1); Proclamations of Governor
Hindmarsh, 28 December 1836, and Governor King, 592-93 (HRA ser. 1, vol. 3).
68. See, e.g., The King v. Murrell, (1836) Legge 72, 72 (Austl.).
 IND. INT'L & COMP. L. REV. [Vol. 9:1

to the Crown. Even aliens69 engaging in unfriendly conduct ° are entitled to

the Crown's protection. Consequently, act of state cannot be pleaded as a
defense to actions brought by Aboriginal peoples in purportedly conquered
lands. Whether a plaintiff is a subject or a resident alien, the plaintiff may
not be barred from justice by the simple invocation of the act of state
doctrine. 7
It appears the common law courts also have some discretion as to
whether they will apply the act of state doctrine when its prerequisites are
met. It is submitted below that, when exercising its discretion, a court
should conclude that it would be inappropriate for the doctrine to be invoked
to bar a claim for Aboriginal sovereignty.

2. United States Courts

The act of state doctrine discussed above is peculiar to the common law
courts. Unlike the Australian and English courts, the United States judiciary
has shown a greater willingness to adjudicate matters pertaining to the
legitimacy of the actions of state representatives. While these courts
maintain that it would be inexpedient for them to pronounce upon certain
political questions, the act of state doctrine as such has only been applied in
limited circumstances.
Under the United States courts' conceptions, the act of state doctrine
is seen as a principle of international law and practice designed to regulate
relations between different nation-states. When applicable, it only prevents
the courts of one country, for example the United States, from adjudicating
a matter concerning the sovereign or state of another nation. The classic
statement of this doctrine in Underhill v. Hernandez72 clearly sets out the
rationale underlying the doctrine and its impact on judicial review:

Every sovereign State is bound to respect the independence of

every other sovereign State, and the courts of one country will
not sit in judgment on the acts of the government of another done
within its own territory. Redress of grievances by reason of such
acts must be obtained through the means open to be availed of by
73
sovereign powers as between themselves.

69. The word "aliens" refers to enemy aliens within Her Majesty's dominions who have
obtained either expressly or implicitly license to live on Crown territory. See DE SMITH,
supra note 43, at 438. "[T]his appears to cover all enemy aliens except combatants." Id.
70. For example, in Johnstone v. Pedlar, the plaintiff was arrested for subversive
activities in Dublin. [1921] 2 App. Cas. 262 (1921) (appeal taken from Ir.)
71. See Nissan v. Att'y Gen., 2 All E.R. 1238, 1243 (C.A. 1967).
72. 168 U.S. 250, 252 (1897).
73. Id.
19981 SOVEREIGNTY OF ABORIGINAL PEOPLES

The United States courts have consistently reaffirmed this statement,74

declaring that the act of state doctrine is essentially a territorial limitation
placed on the exercise of jurisdiction over foreign acts.75 The act of state
doctrine would, therefore, be inapplicable to Aboriginal claims of sovereign
and territorial rights. The adjudication of a dispute between a national and
the government in the domestic courts does not fall within the perameters of
the above-detailed rationale. 76
The doctrine was reworked in a series of cases concerning the Cuban
expropriation of American assets, the leading case being Banco Nacional de
Cuba v. Sabbatino. 7 In essence, these cases have formulated a three-prong
test to determine whether a court will consider a dispute involving a foreign
nation. First, the court must consider whether there exists a codification or
established consensus upon the relevant international law to be applied in the
case.7" The greater the codification or consensus, the more likely the matter
will be heard, as this will enable the court to determine the dispute through
the application of law rather than making a political judgment.79 The
existence of settled legal principles with respect to Aboriginal sovereignty,
delineated below, would therefore provide a strong factor in favor of a court
exercising its jurisdiction over a dispute between an Aboriginal Nation and
the occupying government. Second, the court must have regard for the
impact the dispute may have on foreign relations.'0 The "less important the
implications of an issue are for . . . foreign relations, the weaker the
justification for exclusivity in the political branches." 8 ' This factor would
also suggest that a court could adjudicate a claim for Aboriginal sovereignty,
as the dispute would not impact on foreign relations with other countries.'
Finally, the court must consider the status of the foreign government whose

74. See, e.g., Republic of Phillipines v. Marcos, 818 F.2d 1473, 1481 (9th Cir. 1987).
75. See American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909); Schooner
Exchange v. M'Faddan, 11 U.S. (7 Cranch.) 116, 130 (1812).
76. Possibly such an adjudication would be relevant to an action brought by an
Aboriginal claimant against the Australian government in the United States courts pursuant to
the Alien Tort Statute.
77. 376 U.S. 398 (1964). As the court explained in Sabbatino, there is nothing inherent
in the nature of sovereign authority, nor any principle of international law compelling the
courts to adhere to the act of state doctrine. See id. at 423. Rather, this practice rests on
"constitutional underpinnings" governing the proper distribution of power among the branches
of government. Id. See also First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759
(1972); Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987); Fernandez v.
Wilkinson, 505 F. Supp. 787 (D. Kan. 1980).
78. See FirstNat'l City Bank, 376 U.S. at 428.
79. See id.
80. See id.
81. Id.
82. Similarly, in FirstNat'l City Bank, three Justices in a five-Justice plural majority
declined to apply the act of state doctrine, essentially because it believed that the adjudication
would not interfere with the conduct of foreign relations. See id.
 IND. INT'L & COMP. L. REV. [Vol. 9:1

actions are being reviewed. 3 If a consideration of these factors suggests that

the matter should be heard by the courts, then even the United States' narrow
act of state doctrine will not prevent the matter from being heard.
In Ford v. Suarez-Mason, the court asserted that the nature of the
breach was an additional factor to be taken into account in determining the
applicability of the act of state doctrine.' The Court stressed that while it
may be appropriate to invoke the doctrine where there had been a breach of
economic rights, it should not be invoked where "fundamental human rights
lying at the very heart of the individual's existence" 8" have been violated,
even if the acts were "encouraged or condoned by states." 6 Thus, an
encroachment upon an individual's, or sub-state collective's, human rights
lies outside the protective shield the doctrine offers the government.8 7
Moreover, Aboriginal claims for sovereign and territorial rights would fall
into the category of claims which should not be barred by the act of state
doctrine, particularly in light of international law's concern for the
promotion of the decolonization of post-colonial states and the self-
determination of indigenous peoples. 8
In addition to the above-detailed limitations upon the scope of the
doctrine, the party seeking to convince the court as to its applicability bears
a heavy burden of proof. 89 Allegations of official conduct do not
automatically trigger the availability of the act of state doctrine. 90 The
defendant must satisfy a threshold requirement before the court will even
consider the Sabbatino factors. 9 It must be established that the facts show
"that an Act of State has occurred, coupled with a legal showing that no bar
to the doctrine is applicable under the factual circumstances."' It is only
then that the court will even consider applying the defense.

3. JudicialDiscretion

Finally, it appears that United States courts have discretion in deciding

whether or not to apply the act of state doctrine. An "act of state" is not an

83. See id.

84. See Forti v. Suarez-Mason, 672 F. Supp. 1531, 1546 (N.D. Cal. 1987). Cf.
Fernandez v. Wilkinson, 505 F. Supp. 787, 799-800 (D. Kan. 1980) (discussing the
unsustainability of government action violating fundamental human rights but not specifically
addressing the act of state doctrine).
85. Forti, 672 F. Supp. at 1546.
86. Id.
87. See id. at 1546-47.
88. See United Nations international instruments cited supra note 2.
89. See Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 694-95
(1976); Republic of Philippines v. Marcos, 818 F.2d 1473, 1481-88 (9th Cir. 1987); Forti,
672 F. Supp. at 1544-47.
90. See Forti, 672 F. Supp. at 1546.
91. See id. at 1546 n.9.
92. Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1534 (D.C. Cir. 1984).
19981 SOVEREIGNTY OF ABORIGINAL PEOPLES

absolute jurisdictional bar. It is only respected out of comity,93 and there are
many examples of courts exercising jurisdiction over a foreign sovereign
despite the act of state doctrine. 94
The court's discretion to reject the act of state doctrine would be
appropriately exercised in the case of a claim for Aboriginal sovereign
rights. This is supported by the court's emphasis in Forti v. Suarez-Mason"
that the act of state doctrine should not be applied to cases involving
"fundamental human rights lying at the very heart of the individual's
existence."' As Aboriginal sovereignty is entwined with human rights, such
as cultural, political and territorial integrity, it is contended that it would be
appropriate for a court to refuse to apply the act of state doctrine to a claim
for sovereign rights.
This discretion is equally applicable to courts applying the common
law. To this end it has been suggested that the High Court of Australia
"might consider the exercises of prerogative by which Australia was
acquired for the British Crown to be judicially reviewable on broad public
policy grounds. "I In Mabo v. Queensland, the Court recognized that where
old common law doctrines seriously offend modem values, a question
becomes apparent on whether the doctrine should be sustained and applied.9"
It is submitted that applying the act of state doctrine to bar a claim to
Aboriginal sovereignty would offend contemporary values which are
reflected in current moves toward decolonization and self-determination" for
indigenous peoples. II
The High Court of Australia also recognized that international law was
a "legitimate and important influence on the development of the common
law, especially when international law declares the existence of universal

93. See Verlinden v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983). See generally
First Nat'l City Bank v. Banco Nat'l de Cuba, 406 U.S. 75 (1972).
94. See, e.g., The Lantissina Irivdad, 20 U.S. (7 Wheat.) 283, 354 (1822); Filartiga v.
Peha-Irala, 630 F.2d 876, 889-90 (2d Cir. 1980); Forti, 672 F. Supp. at 1535; Fernandez v.
Wilkinson, 505 F. Supp. 787, 799-800 (D. Kan. 1980).
95. 672 F. Supp. at 1549. See also Fernandez, 505 F. Supp. at 799-800.
96. Forti, 672 F. Supp. at 1549.
97. See Mitchell v. Director of Public Prosecutions [1986] L.R.C. Const. 35, 40
(Gren.). See also S. Gray, Planting the Flag or Burying the Hatchet: Sovereignty and the
High Court Decision in Mabo v. Queensland, 2 GRIFITH L. REV. 39, 47 (1993) (arguing that
the annexation of Australia constituted a "revolution" and the common law courts have
jurisdiction to adjudicate on the validity of a revolution). See also Madzimbamuto v. Lardner-
Burke [19661 R.L.R. 756 (Rhodesia Gen. Div.); [1968] (2) SALR 284 (S. Aft.); R. W. M.
Dias, Legal Politics: Norms Behind the Grundnorm, 26 CAMBRIDGE L.J. 233 (1968); J. W.
Harris, When and Why Does the Grundnorm Change?, 29 CAMBRIDGE L.J. 103 (1971).
98. See Mabo v. Queensland (1992) 175 C.L.R. 1, 29, 30 (Austl.). Ironically, this was
one of the Australian cases where the act of state doctrine was used to deny a consideration
of the legitimacy of the annexation of Australia. Cf. discussion supra note 26 (describing
long-standing claims of Aboriginal sovereignty).
99. See discussion supra note 2.
100. See Gray supra note 97, at 47-48.
 IND. INT'L & COMP. L. REv. [Vol. 9:1

human rights. A common law doctrine founded on unjust discrimination in

the enjoyment of civil and political rights demands reconsideration.""' As
submitted above, a claim for Aboriginal sovereignty involves the recognition
and respect of human rights, such as Aboriginal cultural, as well as political
and territorial integrity. Accordingly, if the act of state doctrine undermines
these rights, then it "demands reconsideration."10 2
Particularly, when a real dispute is brought before a court,0 3 it would
be inappropriate for the political nature of the underlying issue to be used to
bar its consideration.' The courts are duty-bound to pronounce upon suits
brought before them by parties with the requisite standing. The courts
provide an important check on the arbitrary use of governmental and
executive powers, and this responsibility would not be discharged should
courts refuse to entertain actions which recognize and enforce the rights of
Aboriginal peoples. The courts' responsibilities should not be shirked under
the guise of nonjusticiability.
Thus, the act of state doctrine will not necessarily bar a claim for
Aboriginal sovereignty being litigated in the municipal courts, and certainly
would not prevent claims from being made in an appropriate international
forum.

C. Acquisition of Sovereignty by Prescription

1. Introduction

Prescription 0 5 is a dubious'1 6 method of acquiring territory that is said

101. Mabo, (1992) 175 C.L.R. at 25, 41, 42, 58.

102. See Gray, supra note 97, at 50.
103. For example, if an Aboriginal person was charged with a criminal offense, or
involved in civil action and denied the court's jurisdiction to hear the matter, as in The King
v. Murrell, (1836) Legge 72 (Austl.), and In re Phillips (1987) 72 A.L.R. 508 (Austl.), the
dispute would involve a consideration of the legitimacy of the "occupying" state's claims to
sovereignty and the existence of any Aboriginal sovereign rights.
104. It has been suggested that compellability, rather than the political nature of the
dispute, is the only criteria by which a matter must be determined. See generally Melbourne
Corp. v. Commonwealth (1947) 74 C.L.R. 31 (Austl.). Similarly, one of the most
authoritative constitutional law theorists, A. V. Dicey asserted that Parliament's sovereignty
is a question of law, rather than a political issue, that is to be determined by the courts. See
A. V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 70-85
(1959).
105. A comprehensive discussion of this notion is beyond the scope of this article. For
further discussion of prescription, see Cassidy, supra note 3, ch. 24.
106. There are, for example, no instances of any international tribunal conclusively
supporting the doctrine of prescription. While some have suggested that the Island of Palmas
supports its existence, acquisitive prescription was not the basis of Arbitrator Max Huber's
award. See generally Island of Palmas, 22 AM. J. INT'L L. 867 (1928). The matter
essentially involved a consideration of the respective claims of the Netherlands and the United
States governments to sovereignty over the Island of Palmas. See id. Thus, it was a case of
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

to allow a de facto government to remove defects in its putative title when

the prior sovereign has consented or acquiesced to the usurping of its
sovereignty. As Brownlie notes, the "apology" for the notion lies in
considerations of "good faith, the presumed voluntary abandonment of rights
by the party losing title, and the need to preserve international order and
stability. ,107
Prescription has also been used in Australia to refute the legitimacy of
claims of Aboriginal sovereignty. The Senate Standing Committee on
Constitutional and Legal Affairs, for example, declared that the
Commonwealth government could invoke the doctrine of prescription to
remedy any defect in its sovereign title.' The Committee asserted that a
prescriptive title arises when no clear title to sovereignty could "be shown
by way of occupation conquest or cession, but the territory in question had
remained under the continuous and undisputed sovereignty of the claimant
for so long that the position had become part of the established international
order of nations.""° It was suggested that this principle was applicable to the
Australian circumstances and that with the passage of time and the implied
acquiescence of the dispossessed sovereign, a prescriptive title was acquired
by the "invading" sovereign."'
In this manner, despite the operation of the intertemporal rule,"' it has
been suggested that any possible illegality underlying the acquisition of
sovereignty is irrelevant. Even if an acquisition was contrary to international
law, it is suggested that through the doctrine of prescription, the
"occupying" state has effectively derogated from Aboriginal sovereign and
territorial rights, ultimately obtaining the legitimate title to the subject lands.
Underlying this method of territorial acquisition is the belief that "a state
which has slept upon its rights"" should not be able to revive them to defeat

competing contemporaneous claims of sovereignty, rather than "true" prescription where the
prior sovereign acquiesces. See id. Huber was not dealing with an imperial power seeking
to legitimate its purported acquisition of Aboriginal lands. Cf. BROWNLIE, supra note 49, at
162. Further, there is nothing to suggest Huber believed either competing power had acquired
full sovereign rights to the lands in dispute. He was only concerned with deciding between
the rival claims and it is possible neither party satisfied the theoretical requirements for the
acquisition of territory. The Netherlands government's claim to sovereignty was ultimately
founded upon the country's peaceful and continuous display of state authority. Similarily, in
Legal Status of Eastern Greenland (Den. v. Nor.), the court held that, provided the other
competing State could not make out a superior claim, Denmark had the right to the subject
territory even though Denmark demonstrated "very little in the way of... [an actual exercise]
of sovereign rights." 1933 P.C.I.J. (Ser. A/B) No. 53, at 45.
107. BROWNLIE, supra note 49, at 157.
108. See STANDING COMMITTEE, supra note 26, 1 3.37.
109. Id.
110. See id.
111. The intertemporal rule requires the validity of certain rights be determined in light
of modern developments in international law, rather than the law prevailing at the time of the
initial act in dispute.
112. D. W. GREIG, INTERNATIONAL LAW 163 (2d ed. 1976).
 IND, INT'L & COMP. L. REV. [Vol. 9:1

a state which has constantly exercised sovereign rights for a lengthy period.
While the doctrine of prescription may at first glance appear to be
simple, it entails a number of prerequisites which those who seek to utilize
the doctrine to bar claims of Aboriginal sovereignty fail to grasp. Therefore,
if the doctrine is recognized under international law, these prerequisites
would prevent the denial of Aboriginal sovereignty under the guise of
prescription. However, as discussed earlier, even the doctrine of
prescription has been highly debated.I"

2. Prescription under InternationalLaw

Given that prescription has its source in the works of jurists, rather
than case law or treaties, it is not surprising that there are conflicting notions
of precisely what the concept entails and what the prerequisites are for
creating a prescriptive title within each of these doctrines." 4 However,
Brownlie 1' suggests a compilation of the conditions required for acquisitive
prescription, which would appear to be correct, if the doctrine exists in
international law today.

113. A number of jurists have criticized the rule and questioned its validity in the
international legal system. See, e.g., HUGO GROTIUS, THE FREEDOM OF THE SEAS (MARE
LIBERUM) 47 (Ralph Van Deman Magoffin ed. & trans., 1916) (1605) (condemning
prescription as the "last defense of injustice"). "Prescription is a matter of municipal law;
hence it cannot be applied as between kings, or as between free and independent nations." Id.
(footnote omitted). Similarly, in Concerning Right of Passage Over Indian Territory (Port.
v. India), Judge Mareno Quintaria declared acquisitive prescription to be "a private law
institution which I consider finds no place in international law." 1960 I.C.J. 6, 88 (Apr. 12)
(dissenting opinion of Judge Mareno Quintaria). See also U.N. Survey of InternationalLaw
in Relation to the Work of Codification of the InternationalLaw Commission:Memoranda by
the Secretary-General, U.N. International Law Commission, at 39, U.N. Doe.
AICN,411/Rev.1 (1949). Further, the doctrine is contrary to other established rules of
international law. Mere silence, for example, has never been enough to divest a state of its
title. See generally Concerning Sovereignty Over Certain Frontier Lands (BeIg. v. Neth.),
1959 I.C.J. 209 (June 20).
114. The doctrine is regarded by jurists as having three forms:
1. Immemorial possession. This is understood to give title when a state of
affairs exists the origin of which is uncertain and may have been legal or illegal
but is presumed to be legal.
2. Prescription under conditions similar to those required for usucapio in
Roman law: uninterrupted possession, justus titulus even if it were defective,
good faith, and the continuance of possession for a period defined by the law.
3. Usucapio, modified and applying under conditions of bad faith. Thus Hall,
Oppenheim, and Fauchille do not require good faith in the context of
international law.
BROWNLIE, supra note 49, at 157-58. With respect to the first category, it is not actually a
form of prescriptive title as there has been no acquiescence by the prior sovereign. As to the
third category, the use of force is not an acceptable basis for conferring on an occupying state
a prescriptive title.
115. See id. at 159-62.
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

First, possession must be exercised a titre de souverain. There must

be a display of state authority and the absence of recognition of sovereignty
in another state. Except in the case of contemporaneous competitive acts of
sovereignty, the first condition requires acquiescence' 16 by the former
sovereign. In the present context, it is submitted that international law
recognizes both Aboriginal occupation" 7 and Aboriginal sovereignty"' and
that Aboriginal sovereignty has never been ceded to the "occupying"
states." 9 The absence of any such acquiescence is evidenced by the
Aboriginal resistance to "white" settlement 2 ' and modern day 2' displays of
discontent with the "occupying" government. 122 Members of Aboriginal
communities still dispute the legality of the controlling government's
authority,"2 rebuking any suggestion of acquiescence to the "new" sovereign
power. Hence, the first element of prescription would not be satisfied in the
subject cases.
Second, possession must be peaceful and uninterrupted. Once it is
accepted that the sovereign rights to the countries under consideration

116. As Brownlie noted, some writers, such as Hall, Moore, Hyde and Guggenheim
suggest acquiescence is no longer required. See generally BROWNLIE, supra note 49. They
argue a prescriptive title can be obtained simply with the lapse of time, supported by
possession of the relevant land. See generally id. These opinions are neither sustained by
state practice nor jurisprudence and cannot, therefore, be relied upon as authoritative. See
generally id. Brownlie notes that these jurists seem uncertain about the matter, since their
views are ambiguous and inconsistent on this point. See generally id.
117. The recognition of Aboriginal occupation prevents lands from legally being terra
nullius (i.e., open to acquisition by mere occupation). See Western Sahara, 1975 I.C.J. 12,
123 (Oct. 16) (separate opinion of Judge Dillard).
118. See generally id.
119. See discussion supra notes 26, 64.
120. Contrary to the traditional picture painted of the annexation of Australia, the
Aboriginal occupants resisted the occupation of Australia and at times did so very effectively.
See generally NOEL Loos, INVASION AND RESISTANCE: ABORIGINAL-EUROPEAN RELATIONS
ON THE NORTH QUEENSLAND FRONTIER, 1861-1897 (1982); HENRY REYNOLDS, THE OTHER
SIDE OF THE FRONTIER: ABORIGINAL RESISTANCE TO THE EUROPEAN INVASION OF AUSTRALIA
(1982); Julie Cassidy, The Conquered Continent, chs. 5-6 & app. 8 (1986) (unpublished
Honors thesis, University of Adelaide, Faculty of Law, Adelaide, South Australia, Australia)
(on file with author) [hereinafter Cassidy, The Conquered Continent]; Julie Cassidy,
Aboriginal Resistance in South Australia (unpublished research paper) (on file with author).
121. For example, in July 1990, hundreds of police officers from the Surete du Quebec,
the provincial police force, sought to disband the Mohawk Nation's blockade in Oka, Quebec.
See Daniel Lavery & Brad Morse, The Incident at Oka: CanadianAboriginalIssues Move to
the FrontBurner, 48 ABORIGINAL L. BULL. 6 (1991).
122. In Australia, the alienation Aboriginal people feel towards the Australian government
is evidenced by the Aboriginal Embassy that was set up on the lawns of the then Parliament
House in Australia in 1972 and the occupation of that building as an Aboriginal embassy on
January 27, 1992. As noted previously, in July 1990, members of the Australian Aboriginal
community established an Aboriginal Provisional Government representing the Aboriginal
peoples' claims to their sovereign rights. See discussion supra note 26.
123. See discussion supra note 64.
124. See generally Island of Palmas, 22 AM. J. INT'L L. 867 (1928).
 IND. INT'L & COMP. L. REV. [Vol. 9:1

originally resided in the Aboriginal occupants, the second element is refuted

by an acknowledgment of the above-mentioned acts of Aboriginal
resistance" and discontent. 26 This view is supported by the decision in the
Chamizal Arbitration.127 There, the United States government's claim to a
tract of the Rio Grande on the basis of prescription failed because its
possession had not been without challenge. If the diplomatic protests in this
case sufficed to prevent a prescriptive title being acquired, Aboriginal 29
resistance 21 would certainly prevent such a title from being acquired.1
Third, the possession must be public. This requirement flows from the
need for acquiescence on the part of the previous sovereign. 3 ° The
sovereign can only acquiesce to claims of which it has knowledge.
Finally, possession must persist. The most uncertain aspect of the
international doctrine of prescription is the question of "how long must the
possession persist?" Older authorities insisted upon immemorial possession,
while other writers specified requisite fixed periods."3' Most modern
commentators, however, believe the length of time required varies depending
upon the particular circumstances of each case.1 12 If this is so, "time" as
such is not really a special prerequisite for a prescriptive title.' 33
Some jurists, such as Oppenheim, allowed prescriptive titles to be
acquired even when they originated out of force."' Such a suggestion

125. See discussion supra notes 26, 64.

126. See discussion supra notes 24, 64, 122.
127. The Chamizal Arbitration Between the United States and Mexico, reprintedin 5 AM.
J. INT'L L. 782, 805-07 (1911) [hereinafter The Chazimal Arbitration].
128. Additionally, it should be noted that modern international law prohibits the use of
force to settle international disputes. See U.N. CHARTER art. 2, 1 3-4.
129. The failure of Aboriginal peoples in the Chamizal Arbitration to use the United
Nations or the International Court of Justice to resolve this territorial dispute and regain their
territory should not bar them from denying the acquisition of a prescriptive title to their lands
to these post-colonial powers. See BROWNLIE, supra note 49, at 161. In Minquiers and
Ecrehos, the United Kingdom argued French protests were ineffective because they should
have been supported by pressure to have the matter referred to an international tribunal. See
Minquiers and Ecrehos (Fr. v. U.K.), 1953 I.C.J. 47 (Nov. 17). While this view was largely
accepted by Judge Carneiro, it was required by treaty that both States were bound to have legal
disputes settled by the Permanent Court of Arbitration. See id. at 106-08 (individual opinion
of Judge Levi Corneiro).
130. Where, however, the dispute is based on contemporaneous competing state activity,
knowledge is more likely to be assumed and publicity will not be as important. In such cases
the question of acquiescence is only of minor relevance, for the dispute is normally decided
on the relative strength of the contemporaneous claims of the competing powers.
131. See DAVID DUDLEY FIELD, OUTLINES OF AN INTERNATIONAL CODE, 52 (2d ed.
1876). Uninterupted possession of fifty years by a nation will exclude the claim of any other
nation. See id.
132. See 1 PAUL FAUCHILLE, TRAIT9 DE DROIT INTERNATIONAL PUBLIC. pt. 2, at 762
(1925); 1 OPPENHEIM, supra note 3, at 577-78 (1955).
133. BROWNLIE, supra note 49, at 161-62.
134. See GREIG, supra note 112, at 166. Oppenheim used the notion of prescription in
the widest possible manner. See, e.g., OPPENHEIM, supra note 3, at 576.
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

ignores the requirements that the prior sovereign acquiesce to the "new"
state and that the latter's possession must be peaceful. Moreover, an illegal
act of force should not be legitimated in this manner by the mere passage of
time. It is inappropriate for the doctrine of prescription'35 to create rights
and title out of possession based on illegal acts. In this context it is pertinent
to note the comments of Vice-President Ammoun in Namibia:

[W]hile the law of former times . . . tolerated conquest and

annexation, of which South Africa's conduct appears to be one
of the last examples, modern law . . . condemns them beyond
reprieve. Annexation is nothing less than the negation of the
new law of self-determination. Thus the United Nations has
reiterated that acquisition of a territory may not be effected by
the use or the threat of force. Nonetheless, South Africa has
throughout, and even before the Court, sought to justify its
continued occupation of Namibia by claiming to be there by right
of conquest or by the effect of acquisitive prescription. The
Court has dismissed this claim.' 36
Thus, "occupying" states cannot rely on their illegitimate acts of forceful
dispossession to invoke a prescriptive title in a manner designed to deny
Aboriginal sovereign claims. That people have long been displaced or
oppressed does not convert a lawless act into a lawful one.' 37 Pertinent to
this point is the fact that while peaceful occupation might bar subsequent
attempts at colonization by other European powers,3' it has never been
considered grounds for extinguishing the rights of the indigenous
inhabitants. "I
For the reasons suggested above, it is submitted that if international law
recognizes acquisitive prescription," 4 the doctrine has a limited scope and,
in accordance with the sentiments expressed in Namibia, could not be used
by the subject "occupying" states to legitimize dispossessing the Aboriginal
occupants.' 4 An examination of the doctrine only serves to bolster the
claims of the Aboriginal occupants to their sovereign and territorial rights.

135. Greig believes that the cases to which Oppenheim refers are cases of historical
consolidation, rather than prescription. See GREIG, supra note 112, at 166.
136. Namibia, 1971 I.C.J. 16, 91 (June 21) (separate opinion of Vice-President
Ammoun).
137. The International Court of Justice has taken the view that self-determination
superseded a state's.historical claim to territorial rights. See generally Western Sahara, 1975
I.C.J. 12 (Oct. 16).
138. See generally The Chamizal Arbitration, 5 AM. J. INT'L L. 782 (1911).
139. See Concerning Right of Passage Over Indian Territory (Port. v. India), 1960 I.C.J.
6, 38 (Apr. 12). See generally Legal Status of Eastern Greenland (Den. v. Nor.), 1933
P.C.I.J. (ser. A/B) No. 53 (Apr. 5).
140. See discussion supra notes 103, 108.
141. Namibia, 1971 I.C.J. at 91 (separate opinion of Vice-President Ammoun).
 IND. INT'L & COMP. L. REV. [Vol. 9:1

Unlike the "occupying" states, they can prove immemorial possession.

Moreover, even if the doctrine of prescription could be manipulated to
support an "occupying" state's claim to sovereign title, the relevant
international laws recognize that Aboriginal sovereignty and territorial rights
are norms of jus cogens; 42 therefore, the "occupying" state's prescriptive
title is irrelevant. The prescriptive title of an occupying state does not
provide a defense for a failure to recognize the legal rights of Aboriginal
peoples.' 43 Given that the doctrine has no established legal basis!' it is
unfortunate that "occupying" states such as Australia should seek to utilize
such a dubious doctrine to mislead Aboriginal claimants as to the strength of
their claims.
Provided that the bars to Aboriginal claims to sovereignty can be
dismissed in the manner suggested above, it is now pertinent to consider
recognition of Aboriginal sovereignty under international law.

III. ABORIGINAL SOVEREIGNTY IN INTERNATIONAL LAW

A. Terra Nullius

Central to the existence of Aboriginal sovereign rights today is the

validity of the purported acquisition of these peoples' traditional lands by
imperial and colonial powers. While historically, unoccupied territory, also
known as terra nullius, could be acquired by discovery and effective
occupation," 5 inhabited land could only be acquired by descent, conquest,146
cession, or perhaps prescription. 47 The historical treatment of the
Aboriginal peoples of Africa, Australia and North America directly relates
to the erroneous classification of their lands as terranullius, 48 or declared

142. These are nonderogable norms essential to the maintenance of the international legal
order, where prescription cannot validate a breach of the rule of jus cogens. See id. at 89-90.
143. See BROWNLIE, supra note 49, at 501.
144. See discussion supra notes 106, 113.
145. While it has been suggested that in the eighth century mere discovery was sufficient
to establish title terra nullius, the inchoate title stemming from discovery had to be perfected
by effective occupation. See generally Island of Palmas, 22 AM. J. INT'L L. 867, 872-73
(1928).
146. For a discussion of the arguments that would suggest that Australia was acquired by
conquest, rather than settlement, see Cassidy, The Conquered Continent, supra note 120, chs.
5-6 & app. 8. This may be relevant to preserving Aboriginal rights as, at common law, in a
conquered country the private rights of the original occupants continue unaffected until
expressly abrogated by the conquering power. See generally Anonymous, 24 Eng. Rep. 646
(Ch. 1722); Blankard v. Galdy, 91 Eng. Rep. 356 (K.B. 1693). See generally Julie Cassidy,
The Significance of the Classification of a Colonial Acquisition: The Conquered/Settled
Distinction (unpublished manuscript) (on file with author).
147. See discussion supra Part ll(C)(2) (discussing the dubious doctrine of prescription).
148. See The Queen v. Van Der Peet [1996] 137 D.L.R. 4th 289, 380 (Can.). Cf.Asch,
supra note 26; Slattery, supra note 25, at 685-91.
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

open for discovery and settlement. 49 Thus, in Australia, until very

recently,' the denial of Aboriginal sovereignty was based on the false
notion that the continent was terra nullius and was acquired by peaceful
occupation. '5 Through such classification of the continent and its occupants,
the imperial authorities avoided the difficulties involved in acquiring or
supplanting Aboriginal sovereignty.
It is, however, most important to be a valid occupation that the land be
terra nullius.'52 Thus, the initial 15 and continued' 54 validity of colonial
acquisitions and the survival of Aboriginal sovereignty in the countries under
consideration will depend upon whether Aboriginal occupation was
recognized by international law as preventing land from being classified as
terra nullius.
One of the most respected works dealing with this question is Lindley's
The Acquisition and Government of Backward Territory in International
Law.'5 Lindley reviewed the opinions of jurists over the centuries and

149. See Van der Peet, 137 D.L.R. 4th at 330. See also Milirrpum v. Nabalco Party Ltd.
(1971) 17 F.L.R. 141 (Austl.); Cooper v. Stuart, 14 App. Cas. 286, 291-94 (P.C. 1889)
(appeal taken from N.S.W.). CF. M. N. SHAW, TITLE TO TERRITORY IN AFRICA:
INTERNATIONAL LEGAL ISSUES 31-38 (1986); Brad Berg, Introduction to Aboriginal Self-
government in InternationalLaw: An Overview, 56 SASK. L. REV. 375, 382-83 (1992).
150. That Australia was terra nullius was finally rejected in Mabo v. Queensland (1992)
175 C.L.R. 1, 33, 40-42, 58, 181-82 (Austl.). However, the High Court in Mabo upheld the
settled classification of the annexation of Australia. See id. at 33, 180. The court drew a
distinction between whether the Crown had acquired sovereign title to Australia and whether
it had acquired beneficial title to Aboriginal lands. See id. at 32, 44-45, 48, 180. Thus,
Justice Toohey asserted that in considering the consequences of the annexation of Australia
"the distinction between sovereignty and title to rights in the land is crucial." Id. at 180. This
allowed the Court to start with the premise that the "Imperial Crown acquired sovereignty
[over Queensland] on 1 August 1879" and merely considered whether "the Crown also
acquired absolute beneficial ownership of the land . . . when the Crown acquired
sovereignty." Id. at 32.
151. See generally Milirrpum v. Nabalco Party Ltd. (1971) 17 F.L.R. 141 (Austl.);
Cooper v. Stuart, 14 App. Cas. 286 (P.C. 1889) (appeal taken from N.S.W.). The view that
Canada was also acquired through discovery and settlement was recently affirmed in Calder.
See Calder v. Attorney-General of British Columbia [1973] S.C.R. 313, 328-29, 383, 401-02
(Can.). See also The Queen v. Van der Peet [1996] 137 D.L.R. 4th 289 (Can.); The Queen
v. Sparrow [1990] 70 D.L.R. 385, 401, 404 (Can.). For a discussion of the acquisition of
the United States, see generally Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823).
152. GROTIUS, supra note 113, at 13.
153. If it were established that an international custom recognizing Aboriginal sovereign
and territorial rights was a rule ofjus cogens, it may retroactively impair these colonial titles
in so far as they are inconsistent with the terms of the custom.
154. The intertemporal rule requires international rights, such as sovereignty, that are
perpetually exercised in conformance with international law as it develops. Thus, the validity
of an acquisition of sovereign rights must comply with international law at the time of the
dispute.
155. See generally MARK F. LINDLEY, THE ACQUISITION AND GOVERNMENT OF
BACKWARD TERRITORY ININTERNATIONAL LAW (Negro Universities Press 1969) (1926).
 IND. INT'L & COMP. L. REV. [Vol. 9:1

found:

[A] persistent preponderance of juristic opinion in favour of the

proposition that lands in the possession of any backward peoples
who are politically organized ought not to be regarded as if they
belonged to no one. . . . [W]herever a country is inhabited by
people who are connected by some political organization,
however primitive and crude, such a country is not to be
regarded as territorium nullius and open to acquisition by
Occupation. 156

Lindley further states:

[Iln order that an area shall not be territoriumnullius, it would

appear ... that it be inhabited by a political society, that is, by
a considerable number of persons who are permanently united by
habitual obedience to a certain and common superior, or whose
conduct in regard to their5 7mutual relations habitually conforms
to recognized standards.
Thus, all that international law required before Aboriginal populations could
be recognized as being in occupation of land was a degree of political
organization and authority sufficient for the general maintenance of order.' 8
Particularly, given Lindley's comment that "[n]o race is without
organization of some kind,"' 59 the Aboriginal peoples of Australia and North
America satisfied these international requirements and their occupation
prevented their lands from being terra nullius. While most of these
Aboriginal Nations did not conform with eurocentric political systems," 6
each had sophisticated legal systems which had to be obeyed under the threat
of sanction. Their lives were highly regulated by social rules providing "a

156. Id. at 17-20.

157. Id. at 22-23. While the writers of the late nineteenth century applied more stringent
tests, they also believed that Aboriginal sovereignty precluded land from being acquired by
occupation. See id. at 18. Westlake, for example, wrote "an uncivilized tribe [could] grant
by treaty such rights as it understands and exercises." JOHN WESTLAKE, THE COLLECTED
PAPERS ON INTERNATIONAL LAW 151 (L. Oppenheim ed., 1911).
158. Note, some international law jurists believed occupation of lands by Aboriginal
peoples did not prevent land being characterized as terra nullius. See generally ALPHONSE
RIVIER, PRINCIPES DU DROIT DES GENS (1896). This view continues to be held by some
modem scholars. See L. C. Green, Claims to Territory in Colonial America, in THE LAW OF
NATIONS AND THE NEW WORLD 125-26 (L. C. Green & 0. P. Dickson eds., 1989).
159. LINDLEY, supra note 155, at 19.
160. It is possible that certain peoples of South Australia and the Maori peoples of New
Zealand would have satisfied these models. See generally Taplin, The Ngarrindjeri,in THE
NATIVE TRIBES OF SOUTH AUSTRALIA (J. D. Woods, ed., 1879).
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

stable order of society" within the above test. 6' As Justice Blackburn
declared in Milirrpum v. Nabalco with respect to the Aboriginal peoples of
Australia, "[i]f ever a system could be called 'a government of laws, and not
of men,' it is shown in the evidence before me."' 62 Consequently, the
Aboriginal lands purportedly acquired by colonial forces were not
63
uninhabited terra nullius that were acquired by "peaceful" occupation. 1
Lindley's analysis is supported by the International Court of Justice's
advisory opinion in Western Sahara.1"' The court delivered an advisory
opinion on two matters relating to the Spanish colonization of the Western
Sahara. 65 One of the questions involved was determining whether the
Western Sahara was a territory belonging to no one (terra nullius) in 1884
when colonized by the Spanish. The majority of the court held that as the
subject lands were inhabited by nomadic tribes, they could not be classified
as terranullius, and stated that "[w]hatever differences of opinion there may
have been among jurists, the State practice of the relevant period indicates
that territories inhabited by tribes or peoples having a social and political
organization were not regarded as terranullius."I66 As Judge Gros stressed,
"[Tihe independent tribes travelling over the territory, or stopping in certain
places, exercised a defacto authority which was sufficiently recognized for
there to have been no terranullius." 67 Vice-President Ammoun noted in the
course of his judgment:

Mr. Bayona-Ba-Meya goes on to dismiss the materialistic

concept of terra nullius, which led to this dismemberment of
Africa following the Berlin Conference of 1885. Mr. Bayona-
Ba-Meya substitutes for this a spiritual notion: the ancestral tie
between the land, or "mother nature", [sic] and the man who
was born therefrom, remains attached thereto, and must one day
return thither to be united with his ancestors. This link is the
basis of the ownership of the soil, or better, of sovereignty.' 6 8
While the word "occupation" was at times used to signify the acquisition of
sovereignty from these peoples, the majority of the Court asserted that this

161. Milirrpum v. Nabalco Party Ltd. (1971) 17 F.L.R. 141, 267 (Austl.). See also
Kenneth Maddock, Aboriginal Customary Law, in ABORIGINES AND THE LAW 212 (Peter
Hanks and Bryan Keon-Cohen eds., 1984).
162. 17 F.L.R. at 267.
163. For a more complete discussion of whether Australia was a terra nullius territory,
see Cassidy, The Conquered Continent, supra note 120, chs. 4-5.
164. 1975 I.C.J. 12 (Oct. 16).
165. The advisory opinion was requested by the General Assembly of the United Nations.
See id.
166. Id. at 39.
167. Id. at 75 (declaration of Judge Gros).
168. Id. at 85-86 (separate opinion of Vice-President Ammoun).
 IND. INT'L & COMP. L. REv. [Vol. 9:1

use of the term was technically improper. 69 An original sovereign title could
only be acquired by occupation of terra nullius. If land was not terra
nullius, only a derivative title could be acquired and only through agreements
with local rulers. These sentiments were approved or substantially adopted
by Judges Dillard, de Castro and Boni.""0
Given the International Court of Justice's implicit refutation of the
"cultivation test"' 7 ' and the need for Aboriginal societies to comply with
European-like forms of government 72 before their lands could be placed
outside the category of terra nullius, it is again submitted that the lands of the
subject Aboriginal peoples were not terranullius. The required "social and
political organization" existed, and, as is apparent from Western Sahara, the
nomadic nature of some of these peoples' occupation did not prevent them
from exercising sovereignty over their lands.' Vice-President Ammoun's
comments regarding the relationship the peoples of the Western Sahara have
with their land echo that of the subject Aboriginal peoples. ' Moreover, 1in 75
light of Judge Dillard's comment that "you do not protect a terra nullius,"
Aboriginal resistance to colonial
76
expansion also appears to be important to
the classification of land.

169. See id. at 39-40.

170. See id. at 124, 171,173 (separate opinions of Judges Dillard, de Castro, and Judge
ad hoc Boni).
171. It is questionable whether authorities such as Blackstone and Vattel believed the
failure to cultivate land amounted to a forfeiture of the rights of possession. See Cassidy, The
Conquered Continent, supra note 120, chs. 3-4. However, Australian courts and the Privy
Council, until most recently, believed lands occupied by non-cultivating peoples to be terra
nullius. See Cooper v. Stuart [1889] 14 App. Cas. 286, 291-94 (P.C. 1986) (appeal taken
from N.S.W.S. Ct.). See also Coe v. Commonwealth (1979) 53 A.L.J.R. 403 (Austrl.);
Milirrpum v. Nabalco Party Ltd. & the Commonwealth (1971) 17 F.L.R. 141 (Austri.).
172. See Coe, 53 A.L.J.R at 407. Justice Gibbs applied an extremely eurocentric test
requiring distinct legislative, executive and judicial organs before recognizing a peoples as
being capable of possessing any sovereignty. He also required the judicial organs to apply law
of a European type. While Justice Blackburn in Milirrpum, 17 F.L.R. at 161, warned against
applying eurocentric notions to Aboriginal peoples and consequently held that Aboriginal
society did not have to conform with European models of law making and enforcement, later
in his judgment he ignored his own warning and required the claimants establish a proprietary
interest in their lands.
173. See generally Western Sahara, 1975 I.C.J. 12 (Oct. 16).
174. See Milirrpum, 17 F.L.R. at 141; In re Kearney (1984) 52 A.L.J.R. 31 (Austrl.);
Ex parte Japanangka (1984) 52 A.L.R. 31 (Austrl.) (discussing the Aboriginal relationship
with land). See generally ABORIGINAL LEGAL ISSUES (McRae et al. eds., 1991).
175. Western Sahara, 1975 I.C.J. 12, 124 (Oct. 16) (emphasis added).
176. See generally Cassidy, The Conquered Continent, supra note 120.
19981 SOVEREIGNTY OF ABORIGINAL PEOPLES

B. Sovereign Aboriginal Communities

1. Sovereign Entities

While Aboriginal occupation prevents land from being classified as

terra nullius, thereby undermining the validity of "white" occupation of
countries such as Australia, it is still debatable whether international law
recognized such occupation as giving rise to sovereign rights. A survey of
international law jurists again reveals that the preponderance of thought was
that "the aborigines undoubtedly had true dominion in both public and
private matters. " They believed "neither their princes nor private persons
could be despoiled of their property on the ground of them not being true
owners.171' It was not only private rights to land which international law
required to be respected; the public or sovereign rights of these peoples also
had to be acknowledged. Consequently, the normal method of acquisition
of Aboriginal 79
sovereignty was by cession or conquest, rather than
settlement. 1
Again, Lindley's analysis of the works of international law jurists
establishes that these writers accepted certain indigenous groups to be more
than mere legal occupants. They were considered full sovereign states.
While some jurists required these peoples to comply with a prescribed degree
of "civility,""o generally the only prerequisite was a degree of governmental
authority sufficient enough to maintain order within the group.'"' Such
sovereignty could be exercised by a local community or communities, 8 2 a
native sovereign,'83 by many rulers across the country, '" or small groups
jointly exercising co-sovereignty.' ts To this end, many Asian peoples, such
as those of the Ottoman Empire, the Maratha Empire of India,"8 6 Thailand
(Siam), 7 Japan, and Korea were recognized as sovereign entities."

177. Vitoria, supra note 22, at 24.

178. Id.
179. See CRAWFORD, supra note 21, at 180.
180. See WESTLAKE, supra note 157, at 139-57. Westlake required a "native government
capable of controlling white men or under which white civilization can exist." Id. at 145.
181. CRAWFORD, supra note 21, at 176.
182. As in Australia, Canada, the United States and New Guinea.
183. As in New Zealand, Lagos and Zimbabwe.
184. As in India.
185. For example, the tribes, confederations and emirates of the Western Sahara.
186. See, e.g., Concerning Right of Passage Over Indian Territory (Port. v. India), 1960
I.C.J. 6, at 38 (Apr. 12).
187. See, e.g., Concerning the Temple of Preah Vihear (Cambodia. v. Thail.), 1962
I.C.J. 6 (Judgment of June 15, 1962).
188. While these nations were not treated identically to European States, the distinction
was made not on the basis of "civility" but through the application of "regional customs." See
CRAWFORD, supra note 21, at 176.
 IND. INT'L & COMP. L. REv. [Vol. 9:1

Similarly, the peoples of Africa8 9 and the Pacific 1 were recognized as

independent states.
In light of international law's recognition of Aboriginal sovereignty in
these circumstances, it is submitted that there is no reason to deny the
sovereignty of the Aboriginal peoples of Australia and North America. 9 ' As
the Court pointed out in Western Sahara, even nomadic peoples can exercise
defacto sovereignty over the lands through which they roam. 192 Similarly,
nomadic'93 bands of Aboriginal peoples in Australia, New Zealand, Canada
and the United States could be considered to jointly exercise sovereign rights
94
over these countries.

2. Aboriginal Treaties

If these Aboriginal peoples legally held sovereign title to their

traditional lands, as noted above, their territory could be validly acquired
only after obtaining the consent of the people or their sovereign. Yet no
treaties were concluded between the acquiring imperial or colonial powers
and many of the subject dispossessed Aboriginal peoples.' 9 5 Even
where treaties were concluded, in countries such as Canada 96 and New

189. See, e.g., Convention between Great Britain and the Transvaal Burghers
(Swaziland), Aug. 3, 1881, 72 B.F.S.P. 900, reprinted in 159 C.T.S. 57 (1977); Western
Sahara, 1975 I.C.J. 12 (Oct. 16).
190. See, e.g., Treaty of Friendship between Great Britain and Tonga, Nov. 29, 1879,
70 B.F.P.S. 9, reprintedin 155 C.T.S. 439 (1977). The Treaty of Friendship was based on
the Treaty of Cession between Great Britain and New Zealand (Waitangi), Feb. 5-6, 1840, 29
B.F.P.S. 1111, reprinted in 89 C.T.S. 473 (1969).
191. See e.g., Slattery, supra note 25, at 700.
192. See Western Sahara, 1975 I.C.J. 12, 122 (Oct. 16).
193. In Australia, there has been a misapprehension that all Aboriginal peoples were
nomadic. This belief is not accurate. Many Aboriginal communities undertook a sedentary
existence. See generally Cassidy, The Conquered Continent, supra note 120, ch. 4.
194. The sovereign rights should be viewed as exercised in conjunction with other
nomadic and more settled groups.
195. See sources cited supra notes 26, 64. See also SENATE COMM. ON INDIAN AFFAIRS,
2 LAWS AND TREATIES 23 (Charles J. Kappler ed., 1904); J. E. Foster, Indian-White
Relations in the PrairieWest During the Fur Trade Period- A Compact?, in THE SPIRIT OF
ALBERTA INDIAN TREATIES 181, 182-83 (Richard Price ed., Pica Pica Press 1987); RICHARD
T. PRICE, LEGACY: INDIAN TREATY RELATIONSHIPS 20 (1991). This Includes the indigenous
occupants of Australia, the South Island of New Zealand and certain parts of Canada and the
United Staes. With regard to Australia, see discussion supra note 26.
196. See Asch, supra note 26, at 473-74 (discussing the impact of Canadian treaties).
Asch also argues that the Constitution Act, § 91, 1867 (Can.), should be interpreted as a
recognition of the Indian peoples' right to negotiate treaties with the Federal government. See
id. For an explanation of the constitutionalization of Aboriginal treaty rights in Canada, see
Constituiton Act, §§ 25, 35(1), 1982 (Can.). Horseman v. The Queen [1990] 1 S.C.R. 901;
The Queen v. Sparrow [1990] 70 D.L.R. 4th 385, 401, 404; The Queen v. Sioui [1990] 70
D.L.R. 4th 427.
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

Zealand,'" it has only been in recent years that these have been recognized
as legally binding. Perhaps more importantly, the international status of such
treaties has been denied. ' Rather, they have been perceived as domestic
"agreements between Crown and native subjects" in the case of Canadian
agreements and "Crown and non-subjects" in the case of the Treaty of
Waitangi.' 99 Thus, no question of cession is said to arise out of such
treaties. °
Given international law's recognition of the sovereign status of

197. See Treaty of Waitangi Act 1975, No. 114 of 1975 (N.Z.) (confirming the binding
force of the Treaty and adopting measures for its implementation). See also New Zealand
Maori Council v. Attorney-Gen. [1987] 1 N.Z.L.R. 641, 659 (N.Z.C.A.).
198. The international status of treaties between the government and the Indian Nations
of the United States have been more readily recognized by the early courts of that jurisdiction.
Thus, in Worcester v. Georgia, Chief Justice Marshall asserted:
The words 'treaty' and 'nation' are words of our own language, selected in our
diplomatic and legislative proceedings, by ourselves, having each a definite and
understood meaning. We have applied them to Indians as we have applied them
to other nations of the earth. They are applied all in the same sense.
31 U.S. (6 Pet.) 515, 559-60 (1832). See also id. at 544-45 (Marshall, J.,); Cherokee Nation
v. Georgia, 30 U.S. (5 Pet.) 1, 16, 17, 20, 53 (1831); Johnson v. M'Intosh, 21 U.S. (8
Wheat.) 543, 574 (1823); Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810); Island of Palmas,
2 R.I.A.A. 829, 856 (Perm. Ct. Arb. 1928); Asch, supra note 26, at 481 (noting that
Canadian self-government agreements have been denied constitutional status); Nettheim, supra
note 2, at 5; Bryant, supra note 9, at 287; Richard Falk, The Rights of Peoples (In Particular
Indigenous People) in THE RIGHTS OF PEOPLES 18-19 (J. Crawford ed., 1988); P. G.
McHugh, Maori Fishing Rights and the North American Indian, 6 OTAGO L. REV. 62,
81(1985); Andr~e Lawrey, Contemporary Efforts to Guarantee Indigenous Rights Under
InternationalLaw, 23 VAND. J. TRANSNAT'L L. 703, 728 (1990). See generally Berg, supra
note 149; L.C. Green, Aboriginal Peoples, InternationalLaw and Canadian Charterof Rights
and Freedoms, 61 CAN. B. REV. 339 (1983).
199. McHugh, supra note 198, at 81. See generally Simon v. The Queen [1986] 24
D.L.R. 4th 390 (Can.); Guerin v. The Queen [1984] 13 D.L.R. 4th 321 (Can.); Pawis v. The
Queen [1980] 102 D.L.R. 3d 602 (Can.); St. Catherine's Milling and Lumber Co. v. The
Queen [1889] 14 App. Cas. 46 (P.C. 1888) (appeal taken from Can.). Note, however, the
comment in The Queen v. Sioui [1990] 70 D.L.R 4th 427, 448 (Can.):
mother countries did everything in their power to secure the alliance of each
Indian nation and to encourage nations allied with the enemy to change sides.
When these efforts met with success, they were incorporated in treaties of
alliance or neutrality. This clearly indicates that the Indian nations were
regarded in their relations with the European nations which occupied North
America as independent nations.
Id. Earlier in the judgment, however, the Court stated that "relations with Indian tribes fell
somewhere between the kind of relations conducted between sovereign states and the relations
such States had with their own citizens" Id. at 437. Thus the Court appears to suggest that the
status of Indian peoples is sui generis. Strangely, the Australian Senate's Standing Committee
on Constitutional and Legal Affairs believed any "Makaratta" between the Aboriginal people
and the Australian government could not, and seemingly should not, be an international treaty.
See STANDING COMMITTEE, supra note 26.
200. See The Queen v. Secretary of State [1981] 4 C.N.L.R. 86, 101 (Eng. C.A.).
 IND. INT'L & COMP. L. REv. [Vol. 9:1

Aboriginal peoples, the denial of the international nature of such agreements

by scholars and the Canadian courts appears strange.2"1 Logic would dictate
that they be treated as international treaties. Yet, even if this was the case,
the significance of any such agreements to the cession of Aboriginal
sovereignty would depend upon the status of the Aboriginal signatory and
the purpose and effect of the treaty. If the treaty was not concluded between
the legitimate representative of the relevant Aboriginal Nation, the agreement
would be no more than a private contract and could not, therefore,
effectively cede sovereign rights. If, however, the Aboriginal Nation's
sovereign status was legally recognized and the agreement concluded with
the appropriate sovereign representative, the agreement could be regarded
as an international treaty2 2 evidencing the transfer of sovereign title to the
subject lands.
If, however, the treaty did not cede sovereignty, but rather preserved
or qualified the exercise of Aboriginal sovereignty, the "occupying"
government could not rely upon it as a source of derivative title. In this
context, it is important to note that the purpose of most treaties between the
Crown and North American Aboriginal peoples was to preserve Aboriginal
self-government 3 rather than cede sovereignty. The treaties were protective
in nature, incorporating binding and effective clauses preserving Aboriginal
rights in perpetuity, rather than relinquishing such rights.2' In this context,

201. See Bryant, supra note 9, at n.103.

202. See Concerning Right of Passage Over Indian Territory (Port. v. India), 1960 I.C.J.
6, 91-92 (Apr. 12) (dissenting opinion of Judge Moreno Quintana).
203. See Bryant, supra note 9, at 288; See also Michael D. Mason, Canadianand United
States Approaches to Indian Sovereignty, 21 OSGOODE HALL L.J. 422, 426 (1983).
204. See 1 EMMERICH DE VATTEL, LE DROIT DES GENS OU PRINCIPES DE LA LOI
NATURELLE APPLIQUES A LA CONDUITE ET AUX AFFAIRES DES NATIONS ET DES SOUVERAINS,
at ch. xvi, 193 (M.P. Praider-Fodere ed., 1863); 2 CHRISTIAN WOLFF, Jus GENTIUM
MEGHODO SCIENTIFICA PERTRACTATUM, ch. 1, 84 (Joseph H. Drake trans., Carnegie ed.
1934) (1764). While Wolff has suggested that the new sovereign might obtain a prescriptive
title, the conqueror still might be bound by a fiduciary duty to guard the interests of the
indigenous occupants. Canadian and U.S. courts have also recognized that the Crown has a
fiduciary duty to safeguard the interests of Aboriginal occupants. See, e.g., Morton v. Ruiz,
415 U.S. 199 (1974); Seminole Nation v. United States, 316 U.S. 286 (1942); United States
v. Waller, 243 U.S. 452 (1917); Jones v. Meehan, 175 U.S. 1 (1899); Worcester v. Georgia,
31 U.S. (6 Pet.) 515 (1832); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Inter
Tribal Council, Inc. v. Babbitt, 51 F.3d 199 (9th Cir. 1995); Assiniboine & Sioux Tribes of
Fort Peck Indian Reservation v. Bd. of Oil & Gas Conservation of Mont., 792 F.2d 782 (9th
Cir. 1986); Gila River Pima Maricopa Indian Community v. United States, 9 Ct. Cl. 660
(1986); Navajo Tribe of Indians v. United States, 9 Ct. Cl. 227 (1985); United States v.
University of New Mexico, 731 F.2d 703 (10th Cir. 1984); Pechanga Band of Mission Indians
v. Kacor Realty Inc., 680 F.2d 71 (4th Cir. 1982); Am. Indian Residing on Maricopa-AK
Chin Reservation v. United States, 667 F.2d 980 (Ct. Cl. 1981); Passamaquoddy Tribe v.
Morton, 528 F.2d 370 (1st Cir. 1975); Kerr-McGee Corp. v. Farley, 915 F. Supp. 273
(D.N.M. 1995); Connecticut ex rel Blumenthal v. Babbitt, 899 F. Supp. 80 (D. Conn. 1995);
Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784 (D. Minn. 1994);
Havasupai Tribe v. United States, 752 F. Supp. 1471 (D. Ariz. 1990); Little Earth of United
19981 SOVEREIGNTY OF ABORIGINAL PEOPLES

it is important to note that there has been considerable dispute as to the terms
and interpretation of such treaties, particularly where the treaties are written
in two languages. While the English version may suggest a cession of
Aboriginal sovereignty, this may not be so in the Aboriginal version. In the
subject countries such ambiguity is generally resolved in favor of the
Aboriginal version, and thus, treaties are to be interpreted in accordance
with the Aboriginal understanding of their terms.' Treaties are also

Tribes, Inc. v. United States Dep't of Hous. and Urban Dev., 675 F. Supp. 497 (D. Minn.
1987); United States v. Abeyta, 632 F. Supp. 1301 (D.N.M. 1986); Ute Indian Tribe v. Utah,
521 F. Supp. 1072 (D. Utah 1981); Kenai Oil and Gas, Inc. v. Dep't of Interior, 522 F. Supp.
521 (D. Utah 1981).
In Canada, see, e.g., Chippewas of Kettle & Stony Point v. AG (Canada) [19971 141
D.L.R. 4th 1, 10, 12; Corbiere v. Canada [1997] 142 D.L.R. 4th 122, 154; Blueberry River
Indian Band v. Canada [1996] 130 D.L.R. 4th 193; Canadian Pacific Ltd. v. Matsqui Indian
Band [1996] 134 D.L.R. 555, 579; Semiahmoo Indian Band v. Canada [1996] 128 D.L.R. 4th
542; The Queen v. Van der Peet [1996] 137 D.L.R. 4th 289, 301-02, 304, 338, 340, 368-69,
380, 395-97; The Queen v. Badger [1996] 133 D.L.R. 4th 324, 331, 354-55; The Queen v.
Cote [1996] 138 D.L.R. 4th 385, 417; The Queen v. Adams [1996] 138 D.L.R. 4th 657, 677;
The Queen v. Wolfe [1996] 129 D.L.R. 4th 58, 79-80; Delgamuukw v. British Columbia
[1993] 104 D.L.R. 4th 289; The Queen v. Sparrow [1990] 70 D.L.R. 4th at 406, 408; The
Queen v. Taylor [1981] 62 C.C.C. 2d 227; The Queen v. Syliboy [1929] 1 D.L.R. 307, 314.
Note that Chief Justice Brennan rejected the existence of this fiduciary duty in Wik Peoples
v. Queensland [1996] 141 A.L.R. 129, 161. It is submitted that he wrongly suggested the
above cases were based on a protective statutory scheme, rather than a common law or
international law principle.
205. In the United States there is a wealth of cases supporting this position. See, e.g.,
Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (1995); Washington v.
Washington State Commercial Passenger Fishing Vessel Assoc., 443 U.S. 658 (1979);
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); De Coteau v. District County
Court for Tenth Judicial District, 420 U.S. 425 (1975); Antoine v. Washington, 420 U.S. 194
(1975); McClanahan v. Arizona State Tax Comm'n., 411 U.S. 164 (1973); Peoria Tribe of
Indians of Okla. v. United States, 390 U.S. 468 (1968); Northwestern Bands of Shoshone
Indians, v. United States, 324 U.S. 335 (1945); Tulee v. Washington, 315 U.S. 681 (1942);
United States v. Shoshone Tribe of Indians, 304 U.S. 111 (1938); Seufert Bros. Co. v. United
States, 249 U.S. 194 (1919); Alaska Pacific Fisheries Co. v. United States, 248 U.S. 78, 89
(1918); Northern Pacific Railway Co. v. United States, 227 U.S. 355 (1913); Starr v. Long
Jim, 227 U.S. 613 (1913); Winters v. United States, 207 U.S. 564 (1908); United States v.
Winans, 198 U.S. 371 (1905); Minnesota v. Hitchcock, 185 U.S. 373 (1902); Jones v.
Meehan, 175 U.S. 1, 10-11 (1899); Choctaw Nation v. United States, 119 U.S. 1 (1886);
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Cherokee Nation v. Georgia, 30 U.S. (5
Pet.) 1 (1831); Alaska v. Native Village of Venetie Tribal Gov't, 101 F.3d 1286, 1294 (9th
Cir. 1996); Confederated Tribes of Chehalis Indian Reservation v. Washington, 96 F.3d 334
(9th Cir. 1996); Cree v. Waterbury, 78 F.3d 1400 (9th Cir. 1996); Tonkawa Tribe of Okla.
v. Richards, 75 F.3d 1039 (5th Cir. 1996); Rumsey Indian Rancheria of Wintun Indians v.
Wilson, 64 F.3d 1250, 1257 (9th Cir. 1994); Lazore v. Comm'r, 11 F.3d 1180 (3d Cir.
1993); United States v. Washington, 969 F.2d 752 (9th Cir. 1992); Oneida Indian Nation v.
New York, 860 F.2d 1145 (2d. Cir. 1988); United States v. Washington, 774 F.2d 1470 (9th
Cir. 1985); Swim v. Bergland, 696 F.2d 712 (9th Cir. 1983); Donovan v. Navajo Forest
Product Indus., 692 F.2d 709 (10th Cir. 1982); Menominee Indian Tribe v. Thompson, 922
F. Supp. 184 (W.D. Wis. 1996); Meyers v. Bd. of Educ. of San Juan Sch. Dist., 905 F.
Supp. 1544 (D. Utah 1995); Mille Lacs Band of Chippewa Indians v. Minnesota 853 F. Supp.
 IND. INT'L & CoMP. L. REV. [Vol. 9:1

interpreted in light of the government's trust obligations owed to Aboriginal

peoples .206
Crawford suggests, however, that despite the conditional and protective
nature of these agreements, they have been tegarded as effecting an absolute
cession of sovereignty. 07 In essence, he asserts that their protective nature
may be undermined by subsequent practice.2"' Crawford also suggests that
these Aboriginal peoples are soon considered part of the new state. 20 9 Thus,
Aboriginal peoples would encounter many difficulties in enforcing their
"treaty" rights in either the municipal or international courts.21
While it is appreciated that, in accordance with Crawford's sentiments,

1118 (D. Minn. 1994); Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784
(D. Minn. 1994); United States v. Washington, 873 F. Supp. 1422 (W.D. Wash. 1994); Nez
Perce Tribe v. Idaho Power Co., 847 F. Supp. 791 (D. Idaho 1994); Sokaogon Chippewa
Community v. Exxon Corp., 805 F. Supp. 680 (E.D. Wis. 1992); Lac Courte Oreilles Band
of Lake Superior Chippewa Indians v. Wisconsin, 653 F. Supp. 1420 (W.D. Wis. 1987);
United States v. Billie, 667 F. Supp. 1485 (S.D. Fl. 1987); Yankton Sioux Tribe of Indians
v. Nelson, 604 F. Supp. 1146 (S.D.S.D. 1985); Bear v. United States, 611 F. Supp. 589 (D.
Neb. 1985); Babbitt Ford Inc. v. Navajo Indian Tribe, 519 F. Supp. 418 (D. Ariz. 1981).
In Canada, it has been suggested that the dispute continues to rage. See Foster, supra
note 195, at 190; PRICE, supra note 195, at 20; Asch, supra note 26, at 486-87. However,
case law provides that any ambiguity must be resolved in favor of the Aboriginal
interpretation. See The Queen v. Marshall [1997] 146 D.L.R. 4th 257; The Queen v.
Gladstone [1996] 137 D.L.R. 4th 648, 703; The Queen v. Wolfe [1996] 129 D.L.R. 4th 58,
75; The Queen v. Badger [1996] 133 D.L.R. 4th 324, 331, 340, 344; The Queen v. Van der
Peet [1996] 137 D.L.R. 4th 289, 340, 368-69; The Queen v. Horseman [1990] 1 S.C.R. 901,
907; The Queen v. Sparrow [1990] 70 D.L.R. 4th 385, 407; The Queen v. Sioui [1990] 70
D.L.R. 4th 427; Simon v. The Queen [1986] 24 D.L.R. 4th 390, 402; Nowegijick v. The
Queen [1983] 144 D.L.R. 3d 193, 198-99; The Queen v. George [1966] 55 D.L.R. 2d 386;
In re Paulette [1963] 6 W.W.R. 97.
For the New. Zealand position, see New Zealand Maori Council v. Attorney-General
[1987] 1 N.Z.L.R. 659.
206. See Alaska v. Native Village of Venetie Tribal Gov't, 101 F.3d 1286, 1294 (9"' Cir.
1996); Jones v. Meehan, 175 U.S. 1, 10-11 (1899); Cherokee Nation v. Georgia, 30 U.S. (5
Pet.) 1 (1831); The Queen v. Badger [1996] 133 D.L.R. 4th 324, 340-41, 360; The Queen v.
Van der Peet [1996] 137 D.L.R. 4"h 289, 301-02, 340; The Queen v. Wolfe [1996] 129
D.L.R. 4th 58, 75-76; Ontario v. Bear Island Foundation [1991] 83 D.L.R. 4th 381; The
Queen v. Sparrow [1990] 70 D.L.R. 4th 385, 410; Simon v. The Queen [1986] 24 D.L.R. 4th
390, 405-06.
207. See CRAWFORD, supra note 21, at 182.
208. See id.
209. Crawford suggests that, at most, the community would continue to be recognized as
a separate entity in the form of a "domestic dependent Nation." Id. (quoting Chief Justice
Marshall's opinion in Worcester v. Georgia, 31 U.S. at 17-18).
210. See CRAWFORD, supra note 21, at 183. See also Milirrpum v. Nabalco Party Ltd.
& the Commonwealth [1971] 17 F.L.R. 141, 183-98; Warman v. Francis [1958] 20 D.L.R.
2d 627. Difficulties would occur even if the treaty is concluded after the initial cession. See
Cayuga Indians Claim (Gr. Brit. v. U.S.) 6 R.I.A.A. 173 (U.S.-Brit. Arb. Trib. 1926); In re
Southern Rhodesia [1919] A.C. 211, 231-34; OI Le Ngojo v. AG (1913) 5 KENYA L.R. 70.
19981 SOVEREIGNTY OF ABORIGINAL PEOPLES

Aboriginal peoples face certain hurdles in enforcing their rights in these

forums, these hurdles are not insurmountable.21 ' Moreover, Crawford's
view is'not shared by all. The United Nations Working Group on Indigenous
Populations maintains that these treaties between states and Aboriginal
peoples recognize and effectively preserve Aboriginal rights of self-
government and self-determination. 212 Perhaps most importantly, even if
these treaties do not in themselves effectively preserve Aboriginal
sovereignty, in the absence of a formal cession, again, they would not
provide a source of a derivative sovereign title.
In light of the above brief consideration of the sovereign status of
dispossessed indigenous peoples, there appears to be three possible
descriptions of the position of the Aboriginal peoples of Australia, North
America, and other nations. If a treaty was concluded, the Aboriginal
people could have been totally absorbed into the new sovereign's community
or may have retained a distinct status as domestic dependent nations,
exercising sovereignty jointly with the new sovereign state. Where no treaty
of cession was concluded, as in the case of Australia, for example, the
sovereign rights of the Aboriginal occupants could only have been assumed
illegally. Therefore, that title could not have been acquired by prescription.
After examining the notion of domestic dependent nations, the ability of the
latter category of peoples to resurrect their sovereignty is considered.

C. Domestic Dependent Nations: ConcurrentSovereignty

1. Introduction

The resolution of disputes relating to Aboriginal sovereignty is often

mistakenly perceived as only involving two possibilities: (1) acknowledgment
of Aboriginal sovereignty and the consequent destruction of the "occupying"
state's sovereignty; or (2) continuation of the past denial of Aboriginal
sovereignty. However, it is possible for both entities to enjoy concurrent
sovereignty.

2. United States

The Indian tribes of the United States have long been recognized as

211. See supra notes 3, 11. See also T. Hall, As Long as the Sun Shines and the Water
Flows, GLOBE & MAIL, July 25, 1989 (observing that in response to charges of treaty
violations in Canada in 1989 the United Nations launched an investigation).
212. See Report of the Working Group on Indigenous Populations,U.N. Economic and
Social Council, 40th Sess., 110, U.N. Doc. E/CN. 41Sub.211988/24 (1988).
 IND. INT'L & COMP. L. REV. [Vol. 9:1

domestic dependent nations, exercising inherent sovereign rights over Indian

Country." 3 These rights were held concurrently with the United States
government's claim to sovereignty.21 4 The sovereignty of Indian Nations
became entrenched in the United States case law 21 5 as a result of a series of

213. In essence, "Indian Country" constitutes (i) reservations, (ii) allotments, (iii)
dependent Indian communities and (iv) lands to which the Aboriginal title has not been
extinguished. The concept of Indian Country was originally developed in United States v.
Sandoval, 231 U.S. 28 (1913). In this case, the Court held that the lands owned by the Pueblo
Nation were Indian Country for the purposes of enforcing federal Indian liquor laws. The
Court also held that the lands were Indian Country even though they were owned in fee simple
from grants from the King of Spain because they were treated by the United States as a
"dependent Indian community." Id. at 46. C. Oklahoma Tax Comm'n v. Chickasaw Nation,
515 U.S. 540 (1995); California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987);
DeCoteau v. District County Court, 420 U.S. 425 (1975); United States v. Chavez, 290 U.S.
357 (1933); Donnelly v. United States, 228 U.S. 243 (1913); Clairmont v. United States, 225
U.S. 551 (1912); Bates v. Clark, 95 U.S. 204 (1877); Alaska v. Native Village of Venetie
Tribal Gov't, 101 F.3d 1286 (9th Cir. 1996), rev'd, 118 S. Ct. 948 (1998); Mustang Prod.
Co. v. Harrison, 94 F.3d 1382 (10th Cir. 1996); Pittsburg & Midway Coal Mining Co. v.
Watchman, 52 F.3d 1531 (10th Cir. 1995); Cardinal v. United States, 954 F.2d 359 (6th Cir.
1992); United States v. Sands, 968 F.2d 1058 (10th Cir. 1992); Citizen Band Potawatomi
Indian Tribe v. Oklahoma Tax Comm'n, 888 F.2d 1303 (10th Cir. 1989); Indian Country,
U.S.A., Inc. v. Oklahoma, 829 F.2d 967 (10th Cir. 1987); United States v. Martine, 442 F.2d
1022 (10th Cir. 1971); Ute Indian Tribe v. Utah, 935 F. Supp. 1473 (D. Utah 1996);
Narragansett Indian Tribe v. Narragansett Elec, Co., 878 F. Supp 349 (D.R.I. 1995); In re
McCord, 151 F. Supp. 132 (D. Alaska 1957). Note that the other significant requirement in
the exercise of Indian sovereignty is that the community be a "tribe." A community may be
a tribe on the basis that it is a tribe ethnologically, such as "a body of Indians of the same or
a similar race, united in a community under one leadership or government, and inhabiting a
particular though sometimes ill-defined territory," Montoya v. United States, 180 U.S. 261,
266 (1901). See also Joint Tribal Council of Passamaquoddy Tribe v.Morton, 528 F.2d 370
(1st Cir. 1975). A community also includes a federally recognized tribe. See, e.g., United
States v. Sandoval, 231 U.S. 28 (1913); United States v. Holliday, 70 U.S. 407 (1866);
Atkinson v. Haldane, 569 P.2d 151 (Alaska 1977).
214. See Robert G. McCoy, The Doctrine of Tribal Sovereignty: Accommodating Tribal,
State, and FederalInterests, 13 HARv. C.R.-C.L. L. REV. 357, 359 (1978); DAVID S. CASE,
ALASKA NATIvES AND AMEPICAN LAws, 435-76 (1984). As Case notes, it should be kept in
mind that the federal government's policy with respect to Aboriginal sovereignty has been far
from consistent. See id. at 440. In particular, Aboriginal sovereignty was greatly undermined
by the assimilist policy of the 1950s. See generally Carole E. Goldberg, Public Law 280: The
Limits of State Jurisdiction Over ReservationIndians, 22 UCLA L. REV. 535 (1975). Note,
that in addition to their inherent sovereign rights, Indian Nations can also exercise federally
delegated authority over matters that would not be encompassed in inherent Indian sovereignty.
See United States v. Mazurie, 419 U.S. 544 (1975).
215. In modern times the recognition of Aboriginal sovereignty has been supported by
legislative attempts to promote Aboriginal self-determination. See, e.g., Alaska Native Claims
Settlement Act 1971, 43 U.S.C. §§ 1601-1628 (1994); Indian Self-Determination and
Education Assistance Act 1974, 25 U.S.C. §§ 450-450n, 455-458e (1994); Indian Self-
Determination Act 1975, 25 U.S.C.A. § 450 (West Supp. 1998). See also, Alaska v. Native
Village of Venetie Tribal Gov't, 101 F.3d 1286 (1996), rev'd, 118 S.Ct. 948 (1998); New
19981 SOVEREIGNTY OF ABORIGINAL PEOPLES

cases which have come to be known as the "Marshall trilogy."216 According

to the "Marshall trilogy," these Indian Nations had to be left in the
undisturbed possession of their lands, the right to which was only diminished
to a limited extent by the new sovereign's right of pre-emption. 2 7 These
cases recognized Indian tribes as separate nations, entitled to govern
themselves and enforce their own customary laws.21 ' This sovereignty

Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).

216. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 544-45, 559 (1832), overruled by New
Mexico v. Mescalero Apache Tribe, 462 U.S. 342 (1983): Cherokee Nation v. Georgia, 30
U.S. (5 Pet.) 1, 16, 17, 20, 53 (1831); Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 574
(1823). It is important to note that the trilogy does not reveal the entire historical context.
Indian sovereign and territorial rights were first considered by the U. S. Supreme Court in
Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810). This case concerned the notorious Yazoo
land scandal in Georgia. In 1795, the Georgian legislature authorized the grant and sale of
vast areas of the State in the possession of the traditional Indian owners. Allegations of fraud
and bribery led a subsequent Congress to revoke these grants. However, in the meantime,
innocent colonists had purchased these lands in good faith. The Supreme Court was faced with
the task of determining what rights, if any, these purchasers had obtained. While Chief Justice
Marshall held the grants to be constitutional, Justice Johnson went further in asserting Georgia
was not seised in fee. See id. at 95-97. Justice Johnson in his dissent stated that many Indian
Nations "retain a limited sovereignty, and the absolute proprietorship of their soil." Id. at
102. Georgia had no more than "a right of conquest or of purchase, exclusively of all
competitors, within certain defined limits." Id. at 103. The State's right of pre-emption only
gave it the "power to acquire a fee-simple by purchase, when the proprietors should be pleased
to sell." Id. at 104. This, he claimed, was no more than a mere possibility of seisin. See id.
at 102. For the political background to this case, see C. P. MCGRATH, YAZOO: LAW AND
POLITICS INTHE NEW REPUBLIC, THE CASE OF FLETCHER V. PECK (1966); LEONARD BAKER,
JOHN MARSHALL: A LIFE INTHE LAW, 566-72 (1974).
217. The right of pre-emption is the sole right against other European nations to purchase
the Indian lands if they wish to sell. Chief Justice Marshall described the right of pre-emption
in Johnson v. M'Intosh.
This principle found that discovery gave title to the government by whose
subjects, or by whose authority, it was made, against all other European
governments, which title might be consummated by possession. The exclusion
of all other Europeans, necessarily gave to the nation making the discovery the
sole right of acquiring the soil from the natives, and establishing settlements
upon it.
21 U.S. (8 Wheat.) at 573.
218. The conclusion of the trilogy did not bring an end of the courts' recognition of the
Indian Nations' sovereignty. See, e.g., Oklahoma Tax Comm'n v. Citizen Band Potawatomi
Indian Tribe, 498 U.S. 505 (1991); Iowa Mut. Ins. Co. v. La Plante, 480 U.S. 9 (1987); New
Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983); White Mountain Apache Tribe v.
Bracker, 448 U.S. 136 (1980); Washington v. Confederated Bands & Tribes of Yakima Indian
Nation, 439 U.S. 463 (1979); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); United
States v. Wheeler, 435 U.S. 313 (1978); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191
(1978); United States v. Antelope, 430 U.S. 641 (1977); United States v. Mazurie, 419 U.S.
544 (1975); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973); Williams v.
Lee, 358 U.S. 217 (1959); Turner v. United States, 248 U.S. 354 (1919); United States v.
 IND. INT'L & COMP. L. REv. [Vol. 9:1

allows Indian Nations to regulate affairs within the scope of their territory,
exercising authority over matters such as community membership, domestic
relations between members, fish and game resources, taxation," 9 and

Quiver, 241 U.S. 602 (1916); Jones v. Meehan, 175 U.S. 1 (1899); Stephens v. Cherokee
Nation, 174 U.S. 445 (1899); Roffv. Burney, 168 U.S. 218 (1897); United States v. Kagama,
118 U.S. 375 (1886); Elk v. Wilkins, 112 U.S. 94 (1884); Mitchel v. United States, 34 U.S.
(9 Pet.) 711 (1835); Reich v. Mashantucket Sand & Grave, 95 F.3d 174 (2nd Cir. 1996);
Mustang Prod. Co. v. Harrison, 94 F.3d 1382 (10th Cir. 1996); Poodry v. Tonawanda Band
of Seneca Indians, 85 F.3d 874 (2nd Cir. 1996); Narragansett Indian Tribe v. Narragansett
Elec. Co., 89 F.3d 908 (1st Cir. 1996); United States v. Tsosie, 92 F.3d 1037 (10th Cir.
1996); United States v. Begay, 42 F.3d 486 (9th Cir. 1994); Reich v. Great Lakes Indian Fish
& Wildlife Comm'n, 4 F.3d 490 (7th Cir. 1993); United States v. Funmaker, 10 F.3d 1327
(7th Cir. 1993); Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803 (7th Cir. 1993);
EEOC v. Fond du Lac Heavy Equip. & Constr. Co., 986 F.2d 246 (8th Cir. 1993); Black
Hills Inst. of Geological Research v. United States Dep't of Justice, 967 F.2d 1237 (8th Cir.
1992); In re Greene, 980 F.2d 590 (9th Cir. 1992); Seneca-Cayuga Tribe v. Oklahoma, 874
F.2d 709 (10th Cir. 1989); Sanders v. Robinson, 864 F.2d 630 (9th Cir. 1988); Wheeler v.
Swimmer, 835 F.2d 259 (10th Cir. 1987); Wellman v. Chevron U.S.A., Inc., 815 F.2d 577
(9th Cir. 1987); Queets Band of Indians v. Washington, 765 F.2d 1399 (9th Cir. 1985); Irving
v. Clark, 758 F.2d 1260 (8th Cir. 1985); Chemehuevi Indian Tribe v. California State Bd. of
Equalization, 757 F.2d 1047 (9th Cir. 1985); Kerr-McGee Corp v. Navajo Tribe of Indians,
731 F.2d 597 (9th Cir. 1984); R.J. Williams Co. v. Ft. Belknap Housing Auth., 719 F.2d 979
(9th Cir. 1983); Ashcroft v. United States Dep't of Interior, 679 F.2d 196 (9th Cir. 1982);
Escondido Mutual Water Co. v. FERC, 692 F.2d 1223 (9th Cir. 1982): Donovan v. Navajo
Forest Prod. Indus., 692 F.2d 709 (10th Cir. 1982); Ute Distribution Corp. v. Secretary for
the Interior, 934 F. Supp. 1302 (D. Utah 1996); Romanella v. Hayward, 933 F. Supp. 163
(D. Conn. 1996); Montana v. Gilham, 932 F. Supp. 1215 (D. Mont. 1996); Pueblo of Santa
Ana v. Kelly, 932 F.Supp. 1284 (D.N.M. 1996); Basil Cook Enter. Inc. v. St. Regis Mohawk
Tribe, 914 F. Supp. 839 (N.D.N.Y. 1996); Lower Brule Sioux Tribe v. South Dakota, 917
F. Supp. 1434 (D.S.D. 1996); Bowen v. Doyle, 880 F. Supp 99 (W.D.N.Y. 1995);
Narragansett Indian Tribe v. Narragansett Elec. Co., 878 F. Supp. 349 (D.R.I. 1995);
Federico v. Capital Gaming Int'l., 888 F. Supp. 354 (D.R.I. 1995); Kerr-McGee Corp v.
Farley, 915 F. Supp. 273 (D.N.M. 1995); Coeur D'Alene Tribe v. State, 842 F. Supp. 1268
(D. Idaho 1994); Cameron v. Bay Mills Indian Community, 843 F. Supp. 334 (W.D. Mich.
1994); Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685 (1st Cir. 1994); Veeder v.
Omaha Tribe, 864 F. Supp. 889 (N.D. Iowa 1994); GNS Inc. v. Winnebago Tribe, 866 F.
Supp. 1185 (N.D. Iowa 1994); Davids v. Coyhis, 869 F. Supp 1401 (E.D. Wis. 1994); In re
United States, 825 F. Supp. 1422 (D. Minn. 1993); Cropmate Co. v. Indian Resources Int'l,
840 F. Supp. 744 (D. Mont. 1993); Babbitt Ford Inc. v. Navajo Indian Tribe, 519 F. Supp.
418 (D. Ariz. 1981); Navajo Tribe v. Bank of New Mexico, 556 F. Supp. 1 (D.N.M. 1980).
219. See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); Washington v.
Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463 (1979); Burlington
N.R.R. Co. v. Blackfeet Tribe of Blackfeet Indian Reservation, 924 F.2d 899 (9th Cir.
1991); Kerr-McGee Corp v. Navajo Tribe of Indians, 731 F.2d 597 (9th Cir. 1984); United
States v. Anderson, 736 F.2d 1358 (9th Cir. 1984); Southland Royalty Co. v. Navajo Tribe
of Indians, 715 F.2d 486 (10th Cir. 1983); Burlington N.R.R. v. Fort Peck Tribal Executive
Bd., 701 F. Supp. 1493 (D. Mont. 1988); Conoco Inc. v. Shoshone & Arapahoe Tribes, 569
F. Supp. 801 (D. Wyo. 1983). See also Indian Reorganization Act of 1934, 48 Stat. 984,
(codified as amended at 25 U.S.C.A. §§ 461-477 (1998)). The taxing sovereignty may not
be used by Indian Nations to market an exemption from state taxation to persons who would
19981 SOVEREIGNTY OF ABORIGINAL PEOPLES

enjoying sovereign immunity from suit.

In the first case of this trilogy, Johnson v. M'Intosh,22 ° Chief Justice
Marshall declared that the Aboriginal occupants were:

the rightful occupants of the soil, with a legal as well as a just

claim to retain possession of it, and to use it according to their
own discretion; but their rights to complete sovereignty, as
independent nations, were necessarily diminished, and their
power to dispose of the soil at their own will, to whomsoever
they pleased, was denied by the original fundamental principle,
that discovery gave exclusive title to those who made it. 2 '
Thus, until sovereign and territorial title to their lands were ceded, the
Aboriginal occupants enjoyed the right to govern themselves according to
their own customary laws. The only limitation upon Aboriginal sovereignty
was the "occupying" state's right of pre-emption12 2
Less than ten years later the second case in the trilogy, Cherokee
Nation v. Georgia,223 was decided. While Chief Justice Marshall held that

otherwise conduct their business outside Indian Country. See ConfederatedBands & Tribes
of Yakima Indian Nation, 439 U.S. at 479-500. In addition, Indian Nations exercise authority
over crime concurrently with the States. See generally Goldberg, supra note 214 (discussing
Public Law 280 and Major Crimes Act).
220. 21 U.S. (8 Wheat.) 543 (1823). The plaintiff brought an action of ejectment against
the defendant, claiming title to sue as the successor of the original title bought from the Indian
owners in 1773 and 1775. The same land had, however, been later ceded to the United States.
In turn, the United States patented a portion of these lands to the defendant in 1818. The
Court consequently had to determine whether a grant from the holders of the Aboriginal title,
without the consent of the conquering power, prevailed over a patent from the government
authorities. As Chief Justice Marshall stated, the determining factor was "the power of the
Indians to give, and of private individuals to receive, a title which can be sustained in the
Courts of this country." Id. at 572. Chief Justice Marshall held the transfer between the
Piankeshaw Indians and the land speculators was not recognizable. See id. at 604-05. While
the Aboriginal owners' right to their land was unquestionable, only the discovering power, in
this case, Great Britain and after the American revolution, the United States, had the right of
pre-emption. According to the doctrine of discovery, only these governments, not individual
colonists, had the right to purchase lands from the Indians. See id. at 584-85, 594.
221. Id. at 574.
222. See discussion supra note 216.
223. 30 U.S. (5 Pet.) 1 (1831). Motivated by the wish to seize the gold rich lands of the
subject Indian peoples, the State legislated to extend the application of its laws to Cherokee
lands within the State's boundaries. This was in violation of certain treaties existing between
the Indian Nation and the United States. The issue before the Court was whether "the
Cherokees constitute[d] a foreign state in the sense of the constitution" having standing to
invoke the court's original jurisdiction. Id. at 31. The Court held that the Indian Nation was
not a foreign state giving the Court jurisdiction over the dispute. However, the dissenters held
that the Cherokee community was a sovereign foreign state. See id. at 79-80.
 IND. INT'L & COMP. L. REv. [Vol. 9:1

the Cherokee Nation did not constitute "a foreign state," 224 he asserted that
the United States "plainly recognize[d] the Cherokee Nation as a state...
from the settlement of our country. "I Rather than foreign states, they were
"domestic dependent nations" standing in a relationship with the United
States resembling that of "a ward to his guardian."'226 The Indian Nation
exercised concurrent sovereignty with the "conquering" power, thereby
maintaining control within its territorial units. 7 Thus, the Cherokee Nation
was "a distinct political society, separated from others, capable of managing
its own affairs and governing itself." 8
Justice Thompson went further than the majority in his recognition of
Indian sovereignty noting:

[P]rovided the inferior ally reserves to itself the sovereignty or

the right to govern its own body, it ought to be considered an
independent state. Consequently, a weak state, that, in order to
provide for its safety, places itself under the protection of a more
powerful one, without stripping itself, the right of government
and sovereignty, does not cease on this account to be placed
among the sovereigns who acknowledge no other power.229
A year later the third decision in the trilogy was determined in
Worcester v. Georgia.23° Again, the Court recognized that "America.
was inhabited by a distinct people, divided into separate Nations,
independent of each other and the rest of the world, having institutions of
their own, and governing themselves by their own laws." 23' In the course
of his judgment, Chief Justice Marshall stressed that discovery did not give
the Federal or State authorities power to legislate with respect to the Indian
Nations or their territory. Echoing the sentiments of Cherokee Nation v.

224. Id. at 19. Therefore, the Cherokee Nation did not have standing to invoke the
Court's original jurisdiction. Id. at 39.
225. Id. at 16.
226. Id. at 17.
227. See id. at 16-19.
228. Id. at 16.
229. Id. at 53.
230. 31 U.S. (6 Pet.) 515 (1932). The plaintiff, a missionary, had been charged under
a Georgian law for "residing within the limits of the Cherokee nation" without a licence. Id.
at 542. He argued he could not be charged under the statute as it was invalid. The Court
agreed: The State could not legitimately claim dominion over the Cherokee Nation's territory
or persons within such territory. See id. at 560-62. The Cherokee Nation was a distinct self-
governing community, within which the laws of Georgia had no force. See id. at 561. The
prosecution of the plaintiff under Georgian law was in direct conflict with the treaties
guaranteeing the Cherokee Nation's territorial rights and self-government. See id. The earlier
decision convicting Worcester was consequently reversed and annulled. See id. at 562.
231. Id. at 542.
19981 SOVEREIGNTY OF ABORIGINAL PEOPLES

Georgia32,Chief Justice Marshall declared that discovery only gave the

United Kingdom and the United States the right to purchase "such lands as
the natives were willing to sell" 233 as against all other European
governments.' Thus, the Indian Nation's right of self-government remained
unaffected by discovery.? 5 The Court thought the suggestion "that the feeble
settlements made on the sea-coast" gave the authorities "legitimate power"
to govern the Indians was absurd. 6 Rather:

The Indian nations had always been considered as distinct,

independent political communities, retaining their original natural
rights, as the undisputed possessors of the soil, from time
immemorial, with the single exception of that imposed by
irresistible power, which excluded them from intercourse with
any other European poentate than the first discoverer of the coast
of the particular region claimed . . . . The words 'treaty' and
'nation' are words of our own language, selected in our
diplomatic and legislative proceedings, by ourselves, having each
a definite and understood meaning. We have applied them to
Indians as we have applied them to other 2 37
nations of the earth:
They are applied all in the same sense.

Thus, the Court found that history furnished no evidence of attempts by the
Crown to interfere with the internal affairs of the Indian Nations. To the
contrary, treaties between the Cherokee Nation and the United States
"recognize[d] the pre-existing power of the [Cherokee] Nation to govern
itself"2 3 and "their right to self-government. ' 9 Chief Justice Marshall
believed that as domestic dependent nations, the Indians had placed

232. 30 U.S. (5 Pet.) 1 (1831).

233. Worcester, 31 U.S. (6 Pet.) at 545. As Chief Justice Marshall pointed out "[tihe
United States succeeded to all the claims of Great Britain, both territorial and political," but
no more. Id. at 544. See also id. at 560.
234. See id. at 544. The principle of discovery giving right to title
shut out the right of competition among those who had agreed to it . . . .[It
could not] annul the previous rights of those who had not agreed to it. It
regulated the right given by discovery among the [Eluropean discoverers, but
could not affect the rights of those already in possession, either as Aboriginal
occupants, or as occupants by virtue of a discovery made before the memory of
man.
Id. See also id. at 579 (stating Justice McLean's concurring comments).
235. Id. at 542-45.
236. Id. at 544.
237. Id. at 559-60.
238. Id. at 562.
239. Id. at 556.
 IND. INT'L & COMP. L. REV. [Vol. 9:1

themselves under "the protection of one more powerful." 2 However, this

did not take away the Indian Nations' "right of government, and [thereby]
ceasing to be a state." 24 To this end, Chief Justice Marshall stressed that the
notion of "domestic dependent nations" was not synonymous with the
surrender of the Indian Nations' sovereign character:

[It is a] settled doctrine of the law of nations ... that a weaker

power does not surrender its independence, its right to self-
government, by associating with a stranger, and taking its
protection . . . . 'Tributary and feudatory states,' says Vattel,
'do not thereby cease to be sovereign and independent. 242
To imply such a surrender of self-government to "disorderly and licentious
intruders" was illegitimate.24 3 Chief Justice Marshall asserted that to
construe trade treaties as effecting such a surrender would be inconsistent
with the spirit of this and of all subsequent treaties. Therefore, "it would
convert a treaty of peace covertly into an act annihilating the political
existence of one of the parties. Had such a result been intended, it would
have been openly avowed." 2"
The Crown could not, therefore, legitimately claim dominion over this
Indian Nation's territory or persons within such territory. The Court
consequently held that the Cherokee Nation was a distinct self-governing
community, within which the subject laws of Georgia had no force.24
Justice McLean agreed, stressing that in so far as this Georgian law
purported to abolish the territorial and internal political rights of this Indian
Nation, it was repugnant to the terms of treaties with the Cherokee
Indians .246
As Foster notes, these cases have, however, been subsequently treated
as recognizing that federal statutes and treaties guaranteeing Aboriginal
sovereignty, rather than Aboriginal sovereignty itself, ousted the application
of the subject Georgian laws.247 Thus, the cases are said to involve an
implicit recognition that Congress had jurisdiction over Indians, as opposed

240. Id. at 555.

241. Id. at 561.
242. Id. at 561.
243. Id. at 554.
244. Id. at 554.
245. Id. at 561-62.
246. Id. at 578-79. Georgia's subsequent defiance of the Court's mandate led to
Congressional intervention; President, Andrew Jackson, pronounced that "John Marshall has
given his judgement. Now let him enforce it." Felix S. Cohen, Original Indian Title, 32
MINN. L. REV. 28, 41 (1947) (quoting 1 HORACE GREDEY, AMERICAN CONFLICT 106
(1864)).
247. See Foster, supra note 195, at 181-85.
19981 SOVEREIGNTY OF ABORIGINAL PEOPLES

to merely jurisdiction to enter treaties with them.248 This meant that if

Congress could acknowledge and guarantee tribal sovereignty, it could also
restrict or extinguish it; and it has done so on many occasions. 249 As the
United States is said to have ultimate sovereignty over the whole nation,
including Indian Country,150 Indian law making powers may be limited by

248. Congress has jurisdiction over Indians, as opposed to the states, unless the tribe
consents or Congress cedes its authority to the state. See, e.g., California v. Cabazon Band
of Mission Indians, 480 U.S. 202 (1987); Three Affiliated Tribes of Fort Berthold Reservation
v. Wold Eng'g, P.C., 476 U.S. 877 (1986); Montana v. Blackfeet Tribe of Indians, 471 U.S.
759 (1985); Rice v. Rehner, 463 U.S. 713 (1983); New Mexico v. Mescalero Apache Tribe,
462 U.S. 324 (1983); Ramah Navajo Sch. Bd. Inc., v. Bureau of Revenue, 458 U.S. 832
(1982); Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463
(1979); Bryan v. Itasca County, 426 U.S. 373 (1976); McClanahan v. Arizona State Tax
Comm'n, 411 U.S. 164 (1973); Menominee Tribe of Indians v. United States, 391 U.S. 404
(1968); United States v. Kagama, 118 U.S. 375 (1886); Worcester v. Georgia, 31 U.S. (6
Pet.) 515 (1832); Gila River Indian Community v. Waddell, 91 F.3d 1232 (9th Cir. 1996);
Fort Belknap Indian Community v. Mazurek, 43 F.3d 428 (9th Cir. 1994); United States v.
Sands, 968 F.2d (10th Cir. 1992); Gila River Pima-Maricopa Indian Community v. Waddell,
967 F.2d 1404 (9th Cir. 1992); Gila River Pima-Maricopa Indian Community v. United
States, 877 F.2d 961 (Fed. Cir. 1989); United States v. Harvey, 869 F.2d 1439 (1 lth Cir.
1989); Washington Dept. of Ecology v. United States EPA, 752 F.2d 1465 (9th Cir. 1985);
Langley v. Ryder, 778 F.2d 1092 (5th Cir. 1985); United States v. Anderson, 736 F.2d 1358
(9th Cir. 1984); United States v. Daye, 696 F.2d 1305 (11th Cir. 1983); United States v.
Chase, 701 F.2d 800 (9th Cir. 1983); Crow Tribe of Indians v. Montana, 650 F.2d 1104 (9th
Cir. 1981); Seminole Tribe v. Butterworth, 658 F.2d 310 (5th Cir. 1981); Lower Brule Sioux
Tribe v. South Dakota, 917 F. Supp. 1434 (D.S.D. 1996); Pueblo of Santa Ana v. Kelly, 932
F. Supp. 1284 (D.N.M. 1996); Bowen v. Doyle, 880 F. Supp. 99 (W.D.N.Y. 1995); Tohono
O'Odham Nation v. Schwartz, 837 F. Supp. 1024 (D. Ariz. 1993); Crow Tribe of Indians v.
United States, 657 F. Supp. 573 (D. Mont. 1985); United States v. Dakota, 666 F. Supp. 989
(W.D. Mich. 1985); Oneida Tribe of Indians v. Wisconsin, 518 F. Supp. 712 (W.D. Wis.
1981).
Generally, state laws may operate concurrently with Indian laws within Indian Country,
but only in so far as they do not interfere with reservation self-government, i.e., in matters
which it is considered that the Indian Nation has an overriding cultural, economic or social
interest. See, e.g., Rice v. Rehner, 463 U.S. 713 (1983); Montana v. United States, 450 U.S.
544 (1981); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); McClanahan v.
Arizona State Tax Comm'n, 411 U.S. 164 (1973); Kake v. Egan, 369 U.S. 60 (1962);
Segundo v. City of Rancho Mirage, 813 F.2d 1387 (9th Cir. 1987); Crow Tribe of Indians v.
Montana, 650 F.2d 1104 (9th Cir. 1981); Pueblo of Santa Ana v. Kelly, 932 F. Supp. 1284
(D.N.M. 1996); Narragansett Indian Tribe of Rhode Island v. Narragansett Electric Co., 878
F. Supp. 349 (D.R.I. 1995). Note that the suggestion that Public Law 280 empowered the
states to regulate, as opposed to adjudicate, matters within Indian Country was rejected in
Bryan v. Itasca County, 426 U.S. 373 (1976).
249. Note, however, that the legality of the imposition of such restrictions has not gone
unquestioned. See Clinebell & Thomson, supra note 2, at 683-700. Clinebell and Thomson
correctly question the legality of these limitations upon Aboriginal sovereignty.
250. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); Cherokee Nation
v. Southern Kansas R.R. Co., 135 U.S. 641 (1890).
 IND. INT'L & COMP. L. REv. [Vol. 9:1

the Constitution, federal legislation,211 or by implication as a result of their

incorporation within the United States. 2 While out of respect for Indian
sovereignty, the courts will not lightly presume that Congress intended to
oust tribal jurisdiction; 3 ultimately the authority of the Indian Nations is not
absolute. 214

251. See, e.g., Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985); Merrion v.
Jicarilla Apache Tribe, 455 U.S. 130 (1982); Washington v. Confederated Bands & Tribes of
Yakima Indian Nation, 439 U.S. 463 (1979); Santa Clara Pueblo v. Martinez, 436 U.S. 49
(1978); United States v. Wheeler, 435 U.S. 313 (1978); United States v. Sandoval, 231 U.S.
28 (1913); Ex parte Webb, 225 U.S. 663 (1912); Lone Wolf v. Hitchcock, 187 U.S. 553
(1903); Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902); Stephens v. Cherokee Nation,
174 U.S. 445 (1899); Thomas v. Gay, 169 U.S. 264 (1898); Roff v. Burney, 168 U.S. 218
(1897); United States v. Kagama, 118 U.S. 375 (1886); Utah v. Babbitt, 53 F.3d 1145 (10th
Cir. 1995); United States v. Funmaker, 10 F.3d 1327 (7th Cir. 1993); United States v.
Eberhardt, 789 F.2d 1354 (9th Cir. 1986); Navajo Tribe v. Bank of New Mexico, 700 F.2d
1285 (10th Cir. 1983); Donovan v. Navajo Forest Prod. Indus., 692 F.2d 709 (10th Cir.
1982); Wilson v. Marchington, 934 F. Supp. 1176 (D. Mont. 1995); Red Lake Band of
Chippewa Indians v. Swimmer, 740 F. Supp. 9 (D.D.C. 1990); United States v. Burns, 725
F. Supp. 116 (N.D.N.Y. 1989); Rice v. Rehner, 463 U.S. 713 (D. Conn. 1983); Mohegan
Tribe v. Connecticut, 528 F. Supp. 1359 (D. Neb. 1982); Nebraska Public Power Dist. v.
100.95 Acres of Land, 540 F. Supp. 592 (D. Neb. 1982); Babbitt Ford, Inc. v. Navajo Indian
Tribe, 519 F. Supp. 418 (D. Ariz. 1981).
252. See, e.g., Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492
U.S. 408 (1989); United States v. Wheeler, 435 U.S. 313 (1978): Rhode Island v.
Narragansett Indian Tribe, 19 F.3d 685 (1st Cir. 1994); Inupiat Community of Artic Slope v.
United States, 548 F. Supp. 182 (1982). In United States v. Wheeler, 435 U.S. 313 (1973),
the Court held that areas that had been implicitly affected in this manner included the Indian
Nations' ability to (i) alienate their lands to non-Indians, (ii) enter into relations with foreign
Nations and (iii) litigate against non-members in tribal courts. Id. at 326. In Inupiat
Community of Artic Slope v. United States, 548 F. Supp. 182 (1982), aff'd, 746 F.2d 570,
cert. denied, 474 U.S. 820, reh'g denied, 485 U.S. 972, the Court held that Indian authority
was implicitly revoked also in areas that impacted the security of the United States and its
relations with foreign nations.
253. See, e.g., Oklahama Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114 (1993);
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); Washington v. Confederated Bands
& Tribes of Yakima Indian Nation, 439 U.S. 463 (1979); Santa Clara Pueblo v. Martinez, 436
U.S. 49 (1978); Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685 (1st Cir. 1994);
United States v. Eberhardt, 789 F.2d 1354 (9th Cir. 1986); Oglala Sioux Tribe v. South
Dakota, 770 F.2d 730 (8th Cir. 1985); Babbitt Ford Inc. v. Navajo Indian Tribe, 519 F. Supp.
418 (D. Ariz. 1981). For a recent discussion of whether federal legislation, namely Alaska
Native Claims Settlement Act, Pub. L. 92-203, 85 Stat. 688 (1971) (codified as amended at
43 U.S.C. §§ 1601-1629a (1994)), extinguished Aboriginal sovereignty in Alaska, see Alaska
v. Native Village of Venetie Tribal Gov't, 101 F.3d 1286 (1996), rev'd, 118 S. Ct. 948
(1998). The Court stressed that Aboriginal self-government could only be extinguished by
clear and plain language. See id. at 1295.
254. See Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 84-86 (1977).
Note that this would appear contrary to international law as there has been no legally effective
cessation of Indian sovereignty. See Clinebell & Thomson, supra note 2, at 683-700.
19981 SOVEREIGNTY OF ABORIGINAL PEOPLES

Nevertheless, the "Marshall trilogy" continues to be cited"5 in support

of the proposition that Aboriginal "sovereignty continues to the extent that
it has not been specifically abolished by Congress. Although vulnerable, it
is nonetheless inherent, and does not depend upon a grant from Congress or
any other source.""6

3. Canada

The sovereignty of Indian Nations within Indian lands has similarly

been recognized in Canada 57 through legislative enactments, executive
instruments and judicial determinations."5 Thus, in The Queen v. Van der
Peet,15 9 the Court agreed with Slattery that the Marshall Court decisions are
as relevant to Canada as the United States.?0 These cases were also adopted
in The Queen v. Sioui where the Court asserted that relations between the
colonial powers and the Indian Nations were "very close to those maintained

255. For example, Worcester v Georgia, 31 U.S. (6 Pet.) 515 (1832) has been cited more
often than "all pre-Civil War Supreme Court opinions save three." Charles F. Wilkinson,
Indian Tribes and the American Constitution, in INDIANS IN AMERICAN HISTORY 117, 118
(Frederick E. Hoxie ed., 1988).
256. Id. at 358-59 (citing F. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 122 (1942)
and DAVID H. GETCHES & CHARLES F. WILKINSON, CASES AND MATERIALS ON FEDERAL
INDIAN LAW 269 (2d ed. 1986)). See generally Washington v. Confederated Tribes of
Colville Indian Reservation, 447 U.S. 134 (1980).
257. See, e.g., Osoyoos Indian Band v. Oliver [1997 145 D.L.R. 4th 552, 557-58; St.
Mary's Indian Band v. Cranbrook [1996] 126 D.L.R. 4th 539; Canadian Pacific Ltd. v.
Matsqui Indian Band [1996] 134 D.L.R. 4th 555.
258. With respect to legislative enactments, see, e.g., Indian Act, Act of June 28, 1985,
ch. 27, 1985, S.C. 749 (Can.); Seschelt Indian Band Self-Government Act, Act of June 17,
1986, ch. 27, 1986, S.C. 941 (Can.); Indian Self-Government Enabling Act, 1990, ch. 52,
S.B.C. (B.C.). See also Adams Lake Indian Band v. Dist. of Salmon Arm [1996] 137 D.L.R.
4th 89, 96; Canadian Pacific Ltd v. Matsqui Indian Band [1995] 122 D.L.R. 4th 129, 140,
169. The Indian Act of 1985 was introduced to facilitate self-government through the exercise
of the "inherently governmental power of taxation on their reserves." Adams Lake Indian
Band, 137 D.L.R. 4th at 96. For a discussion of legislative and executive recognition of
Indian sovereignty, see ROYAL COMM'N ON ABORIGINAL PEOPLES, PARTNERS IN
CONFEDERATION: ABORIGINAL PEOPLES, SELF-GOVERNMENT, AND THE CONSTITUTION
(Ottawa, 1993).
259. [1996] 137 D.L.R. 4th 289. See also Worcester v. Georgia, 31 U.S. (6 Pet.) 515,
559-60 (1832); Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 573 (1823). Numerous
authorities have discussed the merits of Johnson v. M'Intosh and Worcester v. Georgia
decisions. See, e.g., The Queen v. Sioui [1990] 70 D.L.R. 4th 427; Connoly v. Woolrich
[1867] Rapports Judiciares Revises de ]a Quebec 75; ROYAL COMM'N ON ABORIGINAL
PEOPLES, supra note 258.
260. See Brian Slattery, UnderstandingAboriginalRights, 66 CAN. B. REV. 727, 739
(1987).
261. [1990] 70 D.L.R. 4th 427. See also Mitchell v. Peguis Indian Band [1990] 71
D.L.R. 4th 193, 209; Canadian Pacific Ltd. v. Paul [19881 53 D.L.R 4th 487.
 IND. INT'L & COMP. L. REV. [Vol. 9: I

between sovereign nations. "262 The Court continued by noting:

The mother countries did everything in their power to secure the

alliance of each Indian nation and to encourage nations allied
with the enemy to change sides. When these efforts met with
success, they were incorporated in treaties of alliance or
neutrality. This clearly indicates that the Indian nations were
regarded in their relations with the European nations which
263
occupied North America as independent nations.
The Court noted that the Crown allowed these nations to retain autonomy in
their internal affairs, ultimately concluding that the Indian Nations'
sovereignty was sui generis in a manner similar to the United States'
domestic dependent nations. "[Rielations with Indian tribes fell somewhere
between the kind of relations conducted between sovereign States and the
relations such States had with their own citizens.""
Similarly, in The Queen v. Van der Peet the Court noted:

[Indian] people have always enjoyed, whether as nomadic or

sedentary communities, some kind of social and political
structure. Accordingly, it is fair to say that prior to the first
contact with the Europeans, the native people of Northern
America were independent nations, occupying and controlling
their own territories, with a distinctive culture and their own
practices, traditions and customs. 265
The Court also asserted that the Aboriginal rights protected by the
Constitution Act of 1982 can be best understood as:

[F]irst, the means by which the Constitution recognizes the fact

that prior to the arrival of Europeans in North America the land
was already occupied by distinctive Aboriginal societies, and as,
second, the means by which that prior occupation is reconciled
with the assertion of Crown sovereignty over Canadian
territory .266

262. The Queen v. Sioui, 70 D.L.R. 4th at 448.

263. Id. at 448.
264. Id. at 437.
265. The Queen v. Van der Peet [1996] 137 D.L.R. 4th 289, 329-30.
266. Id. at 309-10. This language was repeatedly approved in subsequent cases, See,
e.g., Corbiere v. Canada [1997] 142 D.L.R. 4th 122, 131; The Queen v. Gladstone [1997]
137 D.L.R. 4th 648, 681; The Queen v. Cote [1996] 138 D.L.R. 4th 385, 406. See also The
Queen v. Adams [19961 138 D.L.R. 4th 657, 666, 679; The Queen v. Van der Peet [1996]
137 D.L.R 4th 289, 303-09, 330-32, 334, 372; Calder v. Attorney-General of British
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

2 67
In Corbiere v. Canada, the Court echoed these sentiments,
suggesting that the protection afforded by the Constitution "may be
particularly important to traditional forms of Aboriginal government which
do not necessarily fall into the current western understanding of
'democratic,' 268 such as those which rely on "hereditary chiefs or
government based on consensus. "269
It would be thought from these statements and from the judiciary's
insistence that Aboriginal rights are categorized as such because "they
constitute or have constituted an integral part of the distinctive culture of the
particular Indians," 270 that Aboriginal sovereignty would be viewed as an
inherent right in Canada which could be affected only through consensual
agreement. 27 ' This view has not, however, been accepted by all members of
the judiciary. The Court in The Queen v. Sioui172 asserted that Aboriginal
sovereign rights could not be unilaterally extinguished. "[T]he very
definition of a treaty ... makes it impossible to avoid the conclusion that a
treaty cannot be extinguished without the consent of the Indians
concerned. '"273 In The Queen v. Van der Pee,74 the Court quoted with
approval Asch's and Macklem's statement that Aboriginal rights "inhere in
the very meaning of Aboriginality. 2 75 Generally, however, it is nevertheless

Columbia [1973] S.C.R. 313, 328, 390. The Van der Peet Court also recognized that these
Aboriginal societies had "a prior legal regime giving rise to Aboriginal rights which persist,
absent extinguishment." 137 D.L.R. 4th at 368. According to the doctrine of continuity, the
lex loci of these Aboriginal societies continued despite British claims of sovereignty. See id.
at 348.
267. [1996] 142 D.L. R. 4th 122.
268. Corbiere, 142 D.L.R. 4th at 136 (quoting THOMAS ISSAC, ABORIGINAL LAW:
CASES, MATERIALS AND COMMENTARY 305 (1995)).
269. Id.
270. Delgamuukw v. British Columbia [1993] 104 D.L.R. 4th 470, 681. See also The
Queen v. Paul [1997] 145 D.L.R. 4th 472, 477; Corbiere v. Canada [1997] 142 D.L.R. 4th
122, 131-32; The Queen v. Marshall [1997] 146 D.L.R. 4th 257, 263; [1996] The Queen v.
Cote 138 D.L.R. 4th 385, 406-07; The Queen v. Adams [1996] 138 D.L.R. 4th 657, 667-70;
The Queen v. Van der Peet [1996] 137 D.L.R. 4th 289, 310.
271. Obviously, Indian Nations assert that their sovereignty is inherent and thus cannot
be unilaterally abrogated. For example, examine the evidence presented by a representative
of the Canadian Indian Lawyers' Association, Ms. Judy Sayers, before the Special House of
Commons Committee on Indian Self-Government. See CANADA HOUSE OF COMMONS
SPECIAL COMMITTEE ON INDIAN SELF-GOVERNMENT IN CANADA: REPORT OF THE SPECIAL
COMMITTEE 44 (Ottawa: Queen's Printer, 1983) (the PennerReport). See also Asch, supra
note 26, at 480-81. This view was accepted by the Royal Commission on Aboriginal Peoples.
See generally ROYAL COMM'N ON ABORIGINAL PEOPLES, supra note 258.
272. [1990] 70 D.L.R. 4th 427.
273. Id. at 435.
274. [1996] 137 D.L.R. 4th 289.
275. Id. at 300 (quoting Michael Asch & Patrick Macklem, Aboriginal Rights and
Canadian Sovereignty: An Essay on R v. Sparrow, 29 ALTA. L. REV. 498, 502 (1991)).
 IND. INT'L & COMP. L. REV. [Vol. 9:1

accepted that Aboriginal rights, including Aboriginal self-government, may

be unilaterally regulated 76 by the federal government2' if it is able to justify
278
the infringement within the tests espoused in The Queen v. Sparrow.
The Canadian government views Aboriginal self-government
agreements to be based "either on the principle of 'delegated authority'..
. or through a form of 'legislative authority'. . . which can be unilaterally
changed or withdrawn by the Federal Parliament."279 The governmental
position is that Canadian state sovereignty extinguished Aboriginal
sovereignty, and thus, the latter sovereignty is treated as being dependent
upon legislative acknowledgment, rather than inherent sovereignty.' These
governments have insisted that sovereignty operates within the terms and
confines of that legislation."' As with the United States' position, under this
view, Aboriginal sovereignty is subject to the direction of the Federal

276. If it is accepted that Aboriginal sovereignty is an existing Aboriginal right that had
not been extinguished prior to 1982, as a result of, inter alia, Constitution Act, § 35(1), 1982
(Can.), the Federal government may not extinguish Aboriginal sovereignty. See, e.g., The
Queen v. Paul [1997] 145 D.L.R. 4th 472, 482; The Queen v. Van der Peet [1996] 137
D.L.R. 4th 289, 303; The Queen v. Sparrow [1990] 70 D.L.R. 4th 385, 400-01. See also
ROYAL COMM'N ON ABORIGINAL PEOPLES, supra note 258.
277. See, e.g., The Queen v. Sikyea [1964] 43 D.L.R. 2d 150, 154; The Queen v.
Derriksan [1976] 71 D.L.R. 3d 159; Kruger v. The Queen [1978] 75 D.L.R. 3d 434;
Moosehunter v. The Queen [1981] 123 D.L.R. 3d 95, 104; Horseman v. The Queen [1990]
1 S.C.R. 901.
278. [19901 70 D.L.R. 4th 385. See also The Queen v. Badger [1996] 133 D.L.R. 4th
324, 354-55; The Queen v. Van der Peet 137 D.L.R. 4th 289, 302-03, 337-39; The Queen v.
Gladstone [1996] 137 D.L.R. 4th 648, 682; The Queen v. Cote [1996] 138 D.L.R. 4th 385,
406. See generally Asch & Macklem, supra note 275 (discussing Aboriginal rights in relation
to the decision of The Queen v. Sparrow).
279. Asch, supra note 26, at 480 (footnotes omited). Note, however, that Premier Rae
of Ontario recently suggested that Aboriginal sovereignty was inherent. See id. at 481.
Aboriginal rights of self-government cannot be extinguished by provincial legislation. See,
e.g., The Queen v. Paul [1997] 145 D.L.R. 4th 472, 477-78, 480, 492; Delgamuukw v.
British Columbia [1993] 104 D.L.R. 4th 289, 537, 539, 681. As in the United States, general
provincial legislation may regulate activities within Indian lands, but only to the extent that it
is not inconsistent with any treaty. See, e.g., The Queen v. Paul [19971 145 D.L.R. 4th 472,
480-81, 88; Delgamuukw v. British Columbia [1993] 104 D.L.R. at 539; The Queen v. Sioui
[1990] 70 D.L.R. 4th 427; Simon v. The Queen [1985] 24 D.L.R. 4th 390. This limitation
is also subject to the Constitution Act, § 35(1), 1982 (Can.). See Delgamuukw, 104 D.L.R.
4th at 492; Sparrow, 70 D.L.R. 4th at 686. Moreover, provincial legislation will be taken to
affect Indian lands only where the Aboriginal use of the land or resource is incompatible with
the purpose underlying the legislation. Paul, 145 D.L.R. 4th at 492.
280. See Asch, supra note 26, at 481.
281. See id. at 480-81 (discussing a letter from P. H. Cadieux, Minister of Indian Affairs
and Northern Development, to W. Erasmus, President, Dene Nation, Feb. 6, 1990).
19981 SOVEREIGNTY OF ABORIGINAL PEOPLES

government.282
Thus, while there is some dispute as to the source of Aboriginal
sovereignty, it appears that the co-existence of Aboriginal rights of self-
government with the Canadian government's sovereignty is accepted by all
arms of government.

4. Australia

While even today many of the Aboriginal communities in Australia are

geographically isolated from the general Australian community, their status
as domestic dependent nations has only been given rare recognition. The
strongest assertion of the status of these communities as domestic dependent
nations can be found in Justice Willis' judgment in The Trial of Bonjon.283
Justice Willis believed the New South Wales colony stood "on a
different footing from some others, for it was neither an occupied place, nor
was it obtained by right of conquest and driving out the natives, nor by
treaties. "I The Aboriginal peoples of the country were "dependent allies,
still retaining their own laws and usages, subject only to such restraints and
qualified control as the safety of the colonists and the protection of the
aborigines required." 2 85 The "Aborigines . . .remained unconquered and
free, but dependent tribes, dependent on the colonists as their superiors for
protection." 216 Such dependency did not, however, amount to a surrender
of Aboriginal sovereignty.2m Relying on the United States' case law, Justice

282. See, e.g., Berg, supra note 149, at 387; Mason, supra note 203, at 423-24, 437-39;
Bryant, supra note 9, at 291; Philip J. Smith, Indian Sovereignty and Self-Determination:Is
a Moral Economy Possible?,36 S.D. L. REV. 299, 300 (1991); Raidza Torres, The Rights of
Indigenous Populations: The Emerging InternationalNorm, 16 YALE J. INT'L L. 127, 143
(1991).
283. Bonjon was charged with the murder of James Weir at Geelong on September 2,
1841. The judgment is set out in THE PORT PHILLIP GAzETTE (1841), in Papers Relative to
South Australia, Vol. 8, IUP (filed in the Rare Books Collection, University of Adelaide
Library, Australia) [hereinafter Bonjon]. Ultimately the learned judge was considered too
radical for the small town and was removed from the bench. See also, e.g., Statements of
Justice Cooper, Supreme Court, May 15, 1851, in Register, May 16 & 20, 1851; Address to
Grand Jury, Supreme Court, Nov. 3, 1840, in Adelaide Chronicle, Nov. 4, 1840; Jury's
Statement, The Trial of Tukkum, Nyalta Wikkannin and Kanger Warli, Supreme Court, May
15, 1851, in Register, May 16 & 20, 1851.
284. Bonjon at 152. Justice Willis declared New South Wales could not have been
acquired by discovery, for New South Wales was not unoccupied when it was taken by the
colonists. The country was not unoccupied; he noted, when the first settlers landed a body of
Aborigines appeared on the shore, armed with spears, which they threw down as soon as they
found the strangers had no hostile intention. See id. at 150.
285. Id.
286. Id.
287. Id.
 IND. INT'L & COMP. L. REV. [Vol. 9:1

Willis held the Aboriginal people were not reduced to the status of Crown
subjects, but retained their traditional rights even in the face of British
sovereignty."' Justice Willis, therefore, concluded "the Aborigines [are] a
distinct though dependent people, and entitled to be regarded as self
governing communities." 9
In accordance with this finding, Justice Willis held that disputes
between Aboriginal persons interse should be governed by "their own rude
laws and customs," refusing to exercise jurisdiction over the matter before
him." ° He believed it would be wrong to extend English law to such persons
"[flor in Australia it is the colonists and not the Aborigines [who] are the
foreigners; the former are exotris, the latter indigenous; the latter the native
sovereigns of the soil, the former uninvited intruders." 29' The mere
introduction of the common law did not serve to extinguish such Aboriginal
customary law which continued to govern the rights of these peoples in their
communities. It would be highly unjust, he declared, if Aboriginal
sovereignty could be so easily abrogated by the introduction of white society:

Indeed as Monsieur de Vattel very justly says, 'whoever agrees

that robbery is a crime and that we are not allowed to take
forcible possession of our neighbours property, will
acknowledge, without any other proof, that no nation has a right
to expel another people from the country they inhabit in order to
2
settle in it herself.' 92
Justice Willis consequently concluded that Aboriginal sovereignty had not
been legitimately extinguished through colonial settlement and could continue
to be exercised, at least concurrently with the Crown. British settlement of
Australia was an unlawful act in defiance of Aboriginal sovereignty, and
until that sovereignty was ceded or abrogated in some other manner, it
continued to be exercised by Aboriginal peoples as domestic dependent
nations.
Justice Willis' approach was not, however, accepted by subsequent
courts .293 Aboriginal peoples were treated as being amenable to colonial

288. See id.

289. Id.
290. Justice Willis pointed to Jamaica and St. Vincent as examples of colonies where
English law prevails, while the Aboriginal people maintain self-government as dependent
allies. Ultimately, the authorities did not proceed with the charge. Unable to produce certain
crucial pieces of evidence, the Crown Prosecutor entered a nolle prosequi.
291. Id. at 152.
292. Id. (quoting Monsieur de Vattel).
293. See discussion supra note 283.
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

laws,2 94 and the notion of Aboriginal sovereignty, even in the form of

domestic dependent nations, was rejected. Thus, in Coe v. Commonwealth, 95
a majority2" of the High Court of Australia rejected the plaintiff's claim for
Aboriginal sovereignty, even in the form of domestic dependent nations.
Writing for the majority, Justice Gibbs, with whom Justice Aickin
agreed, believed that the claim of Aboriginal sovereignty was so outrageous
and vexatious that it amounted to an abuse of process. 297 Nevertheless, he
went on to consider the plaintiff's claim and the possible application of the
doctrine of domestic dependent nations. 28 Unlike the North American
Indians, he believed the Aboriginal peoples of Australia were not a "distinct
political society" separated from the rest of the Australian people who could
exercise sovereignty concurrently with the Crown.2 99 Justice Gibbs
developed an extremely eurocentric test for the recognition of Aboriginal
sovereignty, asserting that an Aboriginal Nation had to have distinct
legislative, executive and judicial organs before its sovereignty could be
recognized." Applying this stringent test, he declared the "contention that
there is in Australia an Aboriginal nation exercising sovereignty, even of a
limited kind, is quite impossible in law to maintain." 3"' More recently, in

294. See, e.g., In re Phillips (1987) 72 A.L.R. 508; Coe v. Commonwealth (1979) 53
A.L.J.R. 403; The Queen v. Wedge (1976) 1 N.S.W.L.R. 581.
295. The plaintiff submitted that the Aboriginal Nation had from time immemorial
enjoyed exclusive sovereignty over the Australian continent. He argued that the sovereign and
territorial rights exercised by the many tribes, clans and bands living and traveling across the
Australian continent formed part of the interlocking system of rights and responsibilities of the
sovereign Aboriginal Nation. The claims of Captain Cook, Captain Phillip and others, on
behalf of the Crown were contrary to these rights and could not, therefore, legitimately
extinguish the Aboriginal sovereign title. These sovereign rights, it was suggested, were
retained by the Aboriginal Nation; therefore, the Australian Commonwealth was an unlawful
government, at least as far as the Aboriginal people were concerned. Coe v. Commonwealth
(1979) 53 A.L.J.R. 403. As noted, in Mabo v. Queensland (1992) 175 C.L.R. 1, the High
Court of Australia invoked the act of state doctrine as purportedly preventing it from
considering the validity of the claim to sovereignty in Australia.
296. Justice Murphy asserted that he would allow a plaintiff to argue that sovereignty to
Australia resided in the Aboriginal Nation. Relying on, inter alia, Western Sahara, 1975
I.C.J. 12 (Oct. 16) he suggested the traditional characterisation of the annexation of the
Australian continent as one of 'occupation' could be questioned to thereby undermine the
foundations of the Australian governments sovereignty. See Coe v. Commonwealth (1979)
53 A.L.J.R. at 412.
297. Coe v. Commonwealth (1979) 53 A.L.J.R. at 412.
298. See id.
299. Id. (quoting Chief Justice Marshall in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.)
1, 17 (1831)).
300. Id. The judicial organs must also apply law of a European type. See id.
301. Id. Justice Gibbs recognized questions of sovereignty and locus standi to be
interrelated, noting his denial of Aboriginal sovereignty meant the plaintiff had no standing
to make these claims. See id. at 409. Justice Jacobs believed he could not consider whether
 IND. INT'L & COMP. L. REV. [Vol. 9:1

Wik Peoples v. Queensland,30 2 Justice Kirby reaffirmed Justice Gibbs'

conclusion by noting that the "indigenous people of Australia [did not]
enjoy 30 3 the status of domestic dependent nations.

IV. REVERSION OF ABORIGINAL SOVEREIGNTY

The final matter for consideration is the legal rights of Aboriginal
peoples, where it is concluded that the colonial occupation of their country
was an invalid invasion of their sovereign rights. In the absence of any
formal surrender by these Aboriginal Nations, 3" under international law this
sovereignty may be resurrected and restored. Bolstered by international
movements supporting decolonization and self-determination, 30 5 the

the Crown had properly obtained its sovereign rights to the continent, asserting that it was not
open to a municipal court to consider claims adverse to the Crown's sovereign rights. See id.
at 410. He did not, however, advert to the question of concurrent sovereignty. Perhaps he
would have considered such a claim as this would not involve the denial of the Crown's
sovereignty.
302. (1996) 141 A.L.R. 129.
303. Id. at 256.
304. See supra notes 26, 64 and accompanying text for discussion on sovereignty.
305. See discussion supra note 2. The International Court of Justice has also recognized
the right to self-determination. See Namibia, 1971 I.C.J. 16 (June 21): Western Sahara, 1975
I.C.J. 12 (Oct. 16). Note, in practice, the right to self-determination has been confined to
"people in the 'classic' colonial context of governance from a distant European power.
Anything beyond that is perceived as a potential threat to the territorial integrity of established
States." Nettheim, supra note 2, at 6. To this end, the International Court of Justice has
declared the right to territorial integrity and security to be "basic conditions" of international
law. See Certain Expenses of the United Nations (Article 17, Paragraph 12 of the Charter),
1962 I.C.J. 151, 168 (July 20). See also Bryant, supra note 9, at 267, 268, 274-75; Falk,
supra note 198, at 26; Williams, supra note 9, at 18; SANDERS, supra note 40, at 27; Torres,
supra note 282, at 162; Pearce, supra note 2, at 376-77; G. Nettheim, 'Peoples' and
'Populations':Indigenous Peoples and the Rights of Peoples, in THE RIGHTS OF PEOPLES 107,
118-19 (James Crawford, ed., 1992); Louis Henkin, The United Nations and Human Rights,
in 19 INT'L ORG. 504, 512-13 (1965); Rudolph Ryser, Fourth World Wars: Indigenous
Nationalism and the Emerging New InternationalPoliticalOrder, in THE QUEST FOR JUSTICE:
ABORIGINAL PEOPLES AND ABORIGINAL RIGHTS 204 (Menno Bolt & J.Anthony Long eds.,
1985); HECTOR GROS ESPIELL, THE RIGHT TO SELF-DETERMINATION: IMPLEMENTATION OF
UNITED NATIONS RESOLUTIONS 13, U.N. Doc. E/CN.4/Sub.2/Rev. 1 (1980). Emerson
believes that the right is confined in this manner as a matter of law, not just practice. See
RUPERT EMERSON, SELF-DETERMINATION REVISED IN THE ERA OF DECOLONIZATION 63-64
(1964). It is submitted, however, that the preferable view is that the doctrine may legally
extend to peoples subjugated by a power within the same country. See, e.g., Berg, supra note
149, at 378-79; SHAW, supra note 149, at 89; CRAWFORD, supra note 21, at 101; BROWNLIE,
supra note 49, at 513; Bryant, supra note 9, at 279; ROSALYN HIGGINS, THE DEVELOPMENT
OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS 103-04
(1963); UMOZGRIKE OR1 UMOZURIKE, SELF-DETERMINATION IN INTERNATIONAL LAW 195-96
(1972); DOV RONEN, THE QUEST FOR SELF-DETERMINATION 5, 6 (1979); AURELIU
CRISTESCU, THE RIGHT TO SELF-DETERMINATION: HISTORICAL AND CURRENT DEVELOPMENT
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

principles of continuity and reversion 3° may be invoked to resurrect the

sovereignty of these dispossessed peoples.
The right of an ousted sovereign to have sovereignty restored under the
laws governing belligerent occupation is derived from ultimate dejure title
or territorial sovereignty. Sovereign rights do not inure in a belligerent
occupant, much less an occupant whose entry was unlawful (ex injuria non
oriturjus). The sovereignty of the dispossessed peoples continues, awaiting
reversion, despite the loss of territory3' 7 and even total illegal annexation.
For "the acquisition of a conquered town is only consummated by the treaty
of peace, or by the entire subjugation or destruction of the State to which it
belongs. "308
Monsieur Vattel believed that even if these people had been completely
subjugated, as long as they "did not submit voluntarily and resistance ended
merely because of a lack of power" 3" they could nevertheless retain their
sovereignty. If these people continue to exist as a nation, in the absence of
a treaty of surrender, their sovereignty can be resurrected. Unless consent
to the rule of the conqueror can be implied with the passage of time, where
people have been forcibly subjugated,3 10 their sovereign title continues in
abeyance and can later be restored. Even a state which has been totally
extinguished can resume its sovereignty when the resurrected "new" state
and the old pre-colonization state are identical.3 '
While the exact legal effects of the reversion are unclear, it appears the
resurrected state resumes full sovereign title. Examples of such reversion of
sovereignty include the resurrection of Portugal's sovereignty after the
invasion of Philip II of Spain"' and modem day Korea, which is seen as
exercising the sovereign rights it possessed before the Japanese occupation.

ON THE BASIS OF UNITED NATIONS INSTRUMENTS 21-23 (1981), U.N. Doc. E/UN.4/Sub.2/
404/Rev. 1. Perhaps most importantly, the contrary view fails to appreciate that territorial
integrity does not necessarily conflict with self-determination because the doctrine is flexible
and may accommodate concurrent sovereignty. See discussion supra note 2.
306. Reversion is to be distinguished from succession. In the former case, sovereignty
is not surrendered and continues in abeyance awaiting revival under the notion of reversion
or post liminium. Some comentators have suggested Israel falls into this category. See JULIUS
STONE, ISRAEL AND PALESTINE: ASSAULT ON THE LAW OF NATIONS (1981).
307. See CRAWFORD, supra note 21, at 412-13.
308. VATTEL, supra note 204, at 212. The reversion of Aboriginal sovereignty is
possible even where lands have purportedly been acquired by conquest. As conquest
necessarily involves a derivative acquisition of rights, it implies prior sovereign and territorial
rights enjoyed by the original occupants who were subsequently, forcibly displaced. Even
these rights, intruded upon by a conquering power, can be restored centuries later.
309. Id. at 213.
310. See CRAWFORD, supra note 21, at 413.
311. See Western Sahara, 1975 1.C.J. 12 (Oct. 16). This was, however, more correctly
a case of succession, not continuity.
312. CRAWFORD, supra note 21, at 413.
 IND. INT'L & COMP. L. REV. [Vol. 9:1

It is also believed the steps taken by the United Nations towards the
establishment of the State of Israel313 only reinforced the legitimate claims of
the Jews to their historical rights.314 Prior to Israel's re-entry into these
territories, it has been suggested the occupants (i.e., Arabian and Jordanian
States) were unlawful belligerents, who therefore acquired no legal title to
the country, despite its annexation. In line with this suggestion, many in the
international community saw Israel's return to be a legitimate assertion of the
State's right to exercise full sovereignty over its kindred lands.31
Similarly, current governments of Australia and North America could
be seen as unlawful belligerent occupants who failed to obtain legitimate title
to these countries. Any acknowledgment of Aboriginal sovereignty today
would, therefore, only involve a reinstatement of the historical rights of the
legitimate sovereigns. Further, as noted above, the Aboriginal occupants of
these countries resisted the invasion of imperial and colonial forces. To a
large extent, however, this resistance ultimately weakened and subsided. It
is submitted that, in accordance with Monsieur Vattel's sentiments, this was
no more than an acknowledgment of the strength of their foes. There was
no voluntary submission to the "conquering" powers, nor an
acknowledgment of the nation as the legitimate sovereign. Moreover, in
varying degrees, these Aboriginal peoples have managed to survive the
invasion of their countries and maintain their identity as separate
nationalities. Thus, in light of Vattel's works, it appears the decimation of
these Aboriginal peoples and the seizure of their lands would not prevent the
reversion of their sovereign rights.
In light of the international law outlined in this article, it would appear
feasible for Aboriginal peoples to have their original sovereignty recognized
and for these people to exercise these rights at least concurrently with the
present governmental authority. The hurdles the "occupying" governments
put forward as preventing such claims are not insurmountable and the
benefits of success are high. Depending on its form, the recognition of
Aboriginal sovereignty could provide many benefits.3" 6 The right of self-
government would provide Aboriginal peoples with a say in their destiny.

313. By a vote of 33 to 13, with 10 abstentions, the General Assembly adopted Resolution
181(11) recommending Palestine be partitioned into separate Arab and Jewish States. See G.A.
Res. 181(11), U.N. Doc. A/64. When Israel declared itself to be an independent State, the
United Nations almost immediately recognized it. See STONE, supra note 306, at 154-55.
314. See THE DECLARATION OF INDEPENDENCE OF THE JEWISH STATE, May 14, 1948
(Isr.), wherein it was stated these peoples were assembled by virtue of the natural and historic
right of Jewish people and of the resolution of the General Assembly of the United Nations.
315. More recent examples can be found in Croatia and the Baltic States.
316. In Australia, perhaps the most realistic approach would be to provide Aboriginal
communities, such as the Pitjantjatjara peoples, with concurrent sovereignty as domestic
dependent Nations.
1998] SOVEREIGNTY OF ABORIGINAL PEOPLES

If their land is recognized as an international state,3" 7 it could provide them

with access to the international tribunals and the consequent enforcement of
international rights.

317. See discussion supra note 9.