Omari Gates
Australia and the United States have very different histories with their indigenous populations, but there are some similarities in how they have approached tribal sovereignty. In the US, tribal authority on Indian land is organic and not granted by the states in which the lands are located. The federal government has a duty to protect the tribes, and tribal members have the right to reside on their land and access its resources. In Australia, there is limited acknowledgement of indigenous legal practices, and the government has not entered into a treaty with its indigenous peoples. However, there have been some attempts to explore the idea of a treaty, and some states have passed legislation to recognise indigenous land ownership. Both countries have also voted against the United Nations Declaration on the Rights of Indigenous Peoples.
| Characteristics | Values |
|---|---|
| Tribal sovereignty | The US federal government has primary jurisdiction over tribal land use, while tribal members retain the right to reside on their land and access its resources. |
| Tribal criminal jurisdiction | Tribes lack the authority to arrest, try, and convict non-Natives who commit crimes on their lands. |
| Tribal delegates | The US House of Representatives includes non-voting tribal delegates, similar to the state-level non-voting seats in the Maine House of Representatives for representatives of specific tribes. |
| Environmental justice | Executive orders have been issued to protect Native American cultural sites, and tribal prosecutors have litigated against the federal government and industry polluters over land use and jurisdiction. |
| Indigenous rights | Australia has not ratified the ILO Convention 169 Indigenous and Tribal Peoples Convention, 1989, and voted against the UN Declaration on the Rights of Indigenous Peoples. |
| Constitutional recognition | Australia has not made a treaty with its Indigenous people, and a 2023 referendum to recognize Aboriginal people in the constitution and establish an advisory group was rejected by a majority of voters. |
| Land rights | The Aboriginal Land Rights Act has granted Aboriginal land claims and put into law the concept of inalienable freehold title. |
| Self-governance | Aboriginal peoples in Australia exercise limited local self-governance through community-based governance councils and Aboriginal Land Councils. |
| Cultural preservation | Aboriginal Australians are working to retain their ancient culture and traditions, including their native languages, which were once suppressed. |
| Social structure | Both hierarchical and egalitarian tendencies were observed in Aboriginal societies, with age and sex being major criteria for differentiating status and roles. |
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What You'll Learn
Tribal sovereignty in the US
The concept of tribal sovereignty in the US is a complex and evolving legal issue that has been at the forefront of the Native American civil rights struggle. Tribal sovereignty refers to the inherent authority of tribes to govern themselves, allowing them to preserve their cultures and traditional ways of life. This sovereignty is recognised as separate from the federal government, the states, and foreign nations, as outlined in Article I, Section 8 of the US Constitution.
The history of tribal sovereignty in the US is marked by continuous struggles over boundaries, jurisdiction, and property rights. While the 1830s saw the Cherokee and Choctaw nations gain the right to send non-voting members to the US House of Representatives, the 1800s also brought challenges to tribal sovereignty with industrialisation and the settlement of occupied lands. The US Supreme Court's decision in Cherokee Nation v. Georgia (1831) established a trust relationship between the federal government and tribal territories, giving the former primary jurisdictional authority over tribal land use while recognising tribal members' rights to reside on and access their land's resources.
The 1871 Act, affirmed by the US Supreme Court in United States v. Kagama (1886), further highlighted the plenary power of Congress over Native American tribes, citing the need to protect and ensure the safety of both tribal members and neighbouring communities. This complex relationship between tribal sovereignty and federal authority continued into the 20th century, with the 1978 case of Oliphant v. Suquamish Indian Tribe reaffirming tribal sovereignty in criminal matters but also limiting tribal jurisdiction over non-Native persons committing crimes on tribal lands.
Despite these challenges, tribal sovereignty remains a fundamental aspect of federal Indian law, impacting various areas such as gaming, fishing, state and local regulation, and criminal law. Native American tribes are considered "domestic, dependent nations" with the power to determine their form of government, define citizenship, enforce laws, collect taxes, and regulate property use. The federal government has a "'duty to protect' tribal lands and rights, and this trust relationship has been a key aspect of the legal framework surrounding tribal sovereignty.
In conclusion, tribal sovereignty in the US is a complex and evolving legal concept that recognises the inherent authority of Native American tribes to govern themselves while also navigating the jurisdictional boundaries with the federal government. The preservation of tribal sovereignty remains a critical aspect of the Native American civil rights movement, with ongoing efforts to protect and promote tribal cultures and traditions within the United States' geographical borders.
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Tribal governments' economic and political rights
The economic and political rights of tribal governments in the United States are complex and filled with legal anomalies. Tribal sovereignty is the concept of the inherent authority of Indigenous tribes to govern themselves within the borders of the United States. The U.S. federal government recognizes American Indian tribes as independent nations and has formal nation-to-nation relationships with 573 sovereign tribal nations, which are legally defined as "federally recognized tribes".
The relationships between tribal governments and the U.S. government are based on partnerships and agreements, with tribal sovereignty predating U.S. sovereignty. Tribal nations are sovereign over tribal members and tribal land, and possess the power to determine their governance structures, pass laws, and enforce laws through police departments and tribal courts. However, tribal sovereignty is dependent on and subordinate to the federal government, and tribal nations do not have direct access to U.S. courts to bring cases against individual states. Tribal nations have immunity against many lawsuits unless a waiver is granted, and tribal enterprises, casinos, and gaming commissions are included in this immunity.
The U.S. Constitution recognizes that tribal nations are sovereign governments, and Article I, Section 8 states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes", indicating that Indian tribes are separate from the federal government, the states, and foreign nations. The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2. These constitutional provisions have been interpreted by the Supreme Court to mean that territorial sovereignty and the plenary power doctrine are today's principles of U.S. Indian law.
Despite the recognition of tribal sovereignty, the federal government has historically failed to honor treaties and legal agreements with tribal nations, and various initiatives have actively limited Native American sovereignty and rights, impacting their economic prospects and cultural traditions. Most Native American land is held in trust by the United States, and federal law regulates the economic and political rights of tribal governments. While tribal criminal jurisdiction over Native Americans is settled, tribal nations continue to strive for criminal jurisdiction over non-Native persons who commit crimes on their lands.
The evolution of the relationship between tribal governments and the federal government has been influenced by finances, with the Revenue Act of 1924 impacting federal tax rates and the establishment of the U.S. Board of Tax Appeals. The Indian Appropriations Act of 1871 prohibited any future treaties between the U.S. government and tribal nations, and the emergence of environmental justice movements in the 1990s led to executive orders from President Bill Clinton addressing the disparate impacts of climate change and the protection of Native American cultural sites.
In contrast, Australian Aboriginal peoples did not have chiefs or other centralized institutions of social or political control. Their societies exhibited hierarchical and egalitarian tendencies, with an egalitarian ethos predominating despite the subordinate status of women. Strong leaders akin to the Melanesian "Big Man" existed in some areas, and age and sex were the major criteria for differentiating status and roles, with women excluded from men's secret-sacred ritual activities.
While there may be some similarities between the concepts of tribal government and the historical structures of Australian Aboriginal societies, the current discussion on tribal governments' economic and political rights primarily focuses on the relationship between tribal communities and the federal, state, and local governments within the United States.
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Aboriginal Australian leadership
Leadership in Aboriginal communities is often situational, with personnel changing according to the ritual being performed. Leadership is also characterised by sharing, with leaders expected to share and discuss information, ideas, and decisions with their fellow group members. Leaders usually spend a lot of time listening.
Aboriginal leaders can move between administrative, political, and civic areas while maintaining their identity-based commitment to Aboriginal interests. Civic leadership could include public servants in the Commonwealth Office of Aboriginal Affairs, the Department of Aboriginal Affairs, and the Aboriginal Development Commission. As of early 2018, there have been nine former or current federal Aboriginal parliamentarians, including Neville Bonner, Aden Ridgeway, and Kenneth (Ken) Wyatt, who became the first Aboriginal member of the House of Representatives in 2010.
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Indigenous Australians' legal recognition
Australia has a long history of Indigenous Australians, who were the first inhabitants of the continent, dating back around 50,000 years before British colonisation. Despite this deep-rooted connection to the land, Indigenous Australians have faced an arduous journey to gain legal recognition in the country's constitution.
Indigenous Australians, including Aboriginal and Torres Strait Islander peoples, have historically been excluded from the nation's founding document, reflecting a broader struggle for reconciliation in Australia. This exclusion has resulted in Indigenous Australians being disproportionately affected by socio-economic issues, including high rates of suicide, alcohol abuse, domestic violence, and imprisonment.
The movement for constitutional recognition of Indigenous Australians has gained momentum over the years, with various proposals advocating for symbolic recognition of their status as the country's first peoples. These proposals also include substantial changes such as prohibiting racial discrimination, protecting Indigenous languages, and establishing new institutions. One notable proposal is the Uluru Statement from the Heart, released by Indigenous leaders in 2017, which called for an "Indigenous Voice to Parliament" as their preferred form of recognition.
Despite growing public support for constitutional recognition, efforts have faced setbacks and resistance. In 2017, the Turnbull government rejected major proposals, arguing that an Indigenous national representative body would be perceived as a "third chamber of Parliament". In 2023, the Albanese government's proposal for an Indigenous Voice to Parliament was heavily defeated in a national referendum. However, the current government has expressed commitment to recognition and has promised to hold a referendum during its term if a consensus is reached.
The path towards legal recognition for Indigenous Australians has been challenging, and it continues to be a complex and evolving issue. While there have been setbacks, there is also a persistent drive for change, with the government acknowledging the need for reconciliation. The future of this issue remains uncertain, but it is clear that Indigenous Australians are determined to secure their rightful place in the country's constitution and society.
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Indigenous Australians' land rights
In Australia, Indigenous land rights or Aboriginal land rights are the rights and interests in the land of Aboriginal Australians and Torres Strait Islander people. The term also includes the struggle for those rights. Connection to the land and waters is vital in Australian Aboriginal culture and to that of the Torres Strait Islander people. There has been a long battle to gain legal and moral recognition of ownership of the lands and waters occupied by the many peoples before the colonisation of Australia in 1788 and the annexation of the Torres Strait Islands by the colony of Queensland in the 1870s.
Indigenous Australians had to be intimately acquainted with all the country within their range of movement and possess detailed knowledge of the location, distribution, and characteristics of its water holes, fauna, flora, and climatic conditions. Their ability to read the ground like a map greatly improved their efficiency as hunters. However, they had no chiefs or other centralized institutions of social or political control. In various measures, Aboriginal societies exhibited both hierarchical and egalitarian tendencies, but they were classless; an egalitarian ethos predominated. Everywhere, age and sex were the major criteria in differentiating status and roles, and it was in the religious arena that the greatest differentiation occurred. Women were excluded from the core of men’s secret-sacred ritual activities, and areas of privilege were further defined by graded acceptance of youths and adult men as they passed through rites of learning. Men of importance were usually elders who derived their status not necessarily because of their age but because of their religious position and personal energy.
The modern land rights movement started with the 1963 Yolngu Bark Petition, when the Yolngu people from the remote settlement of Yirrkala, in north-east Arnhem Land, petitioned the federal government to have their land and rights returned. In 1966, the Gurindji people at Wave Hill cattle station in the Northern Territory went on strike, demanding higher wages and the return of some of their traditional lands. This dispute lasted for eight or nine years and helped raise awareness of the issue of land rights. In 1972, the Aboriginal Tent Embassy was set up on the lawns opposite Parliament House to put pressure on the government to give First Nations peoples control of their land. In December 1976, the Australian Parliament passed the Aboriginal Land Rights (Northern Territory) Act. It was the first legislation in Australia that enabled First Nations peoples to claim land title (ownership) if they could prove their traditional connection to the land.
Different types of land rights laws exist in Australia, allowing for the renewed ownership of land to Indigenous Australians under various conditions. Land rights schemes are in place in the Northern Territory, Queensland (including the Torres Strait Islands), New South Wales, South Australia, Victoria, and Tasmania. The land titles may recognise traditional interest in the land and protect those interests by giving Aboriginal people legal ownership of that land. The Native Title Act was passed following the High Court of Australia decision of Mabo v Queensland (No. 2), which recognised for the first time that Indigenous people had rights to land sourced from their continuing connection to it and that these rights are recognised under Australian common law. As of 2020, Aboriginal and Torres Strait Islander peoples’ rights and interests in land are formally recognised over around 40% of Australia’s land mass.
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Frequently asked questions
Tribal sovereignty refers to the authority of tribes on Indian land, which is not granted by the states in which these lands are located. In the US, tribal sovereignty is recognised by the federal government, which has a duty to protect the tribes.
The evolution of the relationship between tribal governments and the federal government has been a mixed bag, with partnerships and agreements on the one hand, and issues such as finances on the other. Most Native American land is held in trust by the US government, which also regulates the economic and political rights of tribal governments.
Indigenous Australians are people with familial heritage from, or recognised membership of, the various ethnic groups living within the territory of contemporary Australia prior to British colonisation. They consist of Aboriginal Australians and Torres Strait Islanders. In the 2021 Australian Census, 812,728 people self-identified as being of Aboriginal and/or Torres Strait Islander origin, representing 3.2% of the total population of Australia.
Prior to British colonisation, it is estimated that the population of Indigenous Australians was approximately 318,000–1,000,000. However, following colonisation, this number declined due to new infectious diseases, massacres, armed conflicts, and competition over resources with European settlers. The Australian government also removed many mixed heritage children from Aboriginal communities in an attempt to assimilate them into the majority white culture.
Both the US and Australia have a system of government that embraces the idea of indirect democracy, political equality, majority rule, and the preservation of minority rights. They are both Federal systems with a two-house parliament, and an independent judiciary that acts as a final court of appeals.
