Australia: Constitutional Recognition or Treaty?

Whether there should be constitutional recognition of Australia's indigenous peoples is a long-running political debate. On one hand, this kind of recognition is a clear marker of changing thinking that may continue to permeate policies, even though the terra nullius doctrine was over-turned in the 1992 Mabo decision. Some may feel that the legacy of terra nullius lives on in the failure to have Australian Constitutional recognition of indigenous peoples. But as this editorial by Celeste Liddle points out, there is some indigenous opposition to the idea of Constitutional recognition. What is wanted, Liddle  argues, is a level of recognition that transcends that which would be obtained through Constitutional inclusion.

Liddle  notes that "Australia is the only Commonwealth Nation that does not have a treaty with its Indigenous Peoples." 

And having a treaty, she argues, provides a greater form of recognition-- one of sovereignty. Liddle points out the advantages of having a treaty:  "Provisions contained within a treaty could greatly address the current disadvantages faced by many Indigenous people as the government would have obligations to fill including the obligation to consult the community on proposed legislation affecting us."

Tribal Self-Government and Violence Against Women

The Violence Against Women Act (VAWA) is up for a re-authorization vote in the American Congress. Approval of a federal law that provides funding for victims of domestic violence seems like it should be a straight-forward, no brainer kind of decision. But as might be expected in Washington, things have gotten very political about it, and Republican opposition to the bill is seen as causing women to become very disenchanted with that party and throwing their support behind Barack Obama in the presidential election polls.

But beyond the politics which swirl around the re-authorization of this Act is an issue about indigenous self-government. The proposed reauthorization of the Act contains a provision that would give tribal courts jurisdiction to prosecute non-tribal members for “domestic violence, dating violence, and violations of protective orders that occur on their lands. ”

But as Levi Ricketts, the editor in chief of the Native News Network comments, there is a opposition to giving tribal courts jurisdiction over non-tribal members. There is, in short, resistance to the idea of indigenous self-government and the exercise of those powers against non-tribal members for acts done on indigenous lands. This shows up the paradox of the US position that indigenous nations are sovereign and reveals of course the reality that indigenous nations are as sovereign as the United States government chooses to let them be, which really doesn’t seem like sovereignty at all to me.

But this is a debate that goes far beyond what the exercise of indigenous sovereignty, self-determination and autonomy should be. The need for tribal jurisdiction is a matter of pragmatics. Tribal court prosecution is probably the only way that perpetrators of these acts will face criminal charges. Now, this is not a matter of tribal systems being reluctant to prosecute their own. Far from it. As Mr Ricketts indicates, NINETY PERCENT ( yes NINETY PERCENT) of “perpetrators of violence against Native women are non-Indian men.” That puts the state and federal system failure to prosecute in an entirely different light. Mr Ricketts says that figures in a “2010 GAO Study, United States Attorneys decline to prosecute 67 percent of sexual abuse and related matters that occur in Indian country.”
(Link to GAO report see page 9 of the report for the statistics referred to by Mr Ricketts)

Amnesty International has carried out a study of violence against indigenous women in the United States. It bears out the remarks made by Mr Ricketts, stating in the report summary that “in at least 86 per cent of the reported cases of rape or sexual assault against American Indian and Alaska Native women, survivors report that the perpetrators are non-Native men.”

(link to full Amnesty Report )

As the Amnesty Report comments, the reasons for non-prosecution of these cases are “complex”. Jurisdiction issues are part of the problem, but the GAO report indicates that jurisdictional problem were “cited in only 2 percent of declinations” as the reason for non-prosecution. Clearly something more is at work—both in the high rate of sexual violence against indigenous women by non-indigenous men, and in the failure to prosecute. The Amnesty Report leaves no doubt about what this something else is: “prejudice and discrimination at all stages and levels of federal and state investigations and prosecution.”

The rates at which indigenous women are targeted by non-indigenous men is alarming in itself, as shown in these comments by Mary Annette Pember: “86 percent of rapes reported by Indian women involve a perpetrator outside of their race. This is not typical. For example, in 2004, 65.1 percent of perpetrators of sexual violence against white women were white and 89.8 percent of perpetrators against African American women were African American.”

In other words, indigenous women are targeted by non-indigenous men in percentages and numbers that should sound alarm bells. The failure to prosecute these crimes should sound alarm bells. The resistance to tribal court jurisdiction over these acts should sound alarm bells. The Native News Network feature on this urges a call to action, to contact US Congressional representatives to support provisions for tribal jurisdiction over acts of violence against indigenous women. The situation as it is grossly intolerable.

The Meaning of “Sovereignty” for Indigenous Peoples in the United States.

The relationship that the United States government has with the indigenous peoples within its borders is complex to say the least. Indigenous groups are recognised as having at least some rights as sovereign nations—but these groups are “the forgotten sovereigns” as Tonya Kowalski compelling writes about.

The United States government retains the power to bestow recognition of this sovereign status upon indigenous groups in the form of granting them federal recognition. There are over five hundred federally recognised “Indian tribes”, and also many indigenous groups that exist but nevertheless do not meet the established criteria for federal recognition. Some groups have state recognition even if there is no federal recognition, and other groups are in the lengthy process of applying for federal recognition. Other groups once had federal recognition and lost it. All of this begs the question of how a group attains or retains sovereignty—and under what legal doctrines the United States is empowered to decide if a group is sovereign, especially in the post UN Declaration on the Rights of Indigenous peoples era. But that is a discussion for another day. What is important is what it means to have this sovereign status—and this is something that is predicted to be put to the test by the Hualapai nation.

The sovereign status that indigenous groups have in the US has given them some unique positioning. Near my hometown, the indigenous nations lands are home to several petrol stations where the price is cheaper—federal tax on petrol is not charged on the indigenous tribal lands. Many indigenous groups notably have set up casinos—again federal or state restrictions on gambling enterprises did not strictly apply on indigenous lands, enabling the establishment of casinos. Casinos might be the only contact non-indigenous Americans have with indigenous groups. Many Americans are unaware that indigenous peoples are in fact still alive and did not all get killed or die out or-- simply somehow get absorbed into the general population of the US (although that was certainly the plan of the US government for many years as it ruthlessly pursued a policy of forced assimilation).

So the actions of the Hualapai nation may take many people by surprise—not in the least because many Americans will simply not know that they are there. And that beyond “being there” they are a nation with sovereign rights that are being put to the test as the nation exercises its sovereign right of eminent domain—eminent domain being a governmental power to seize land to be held in its own name and in its own right. As reported by MSNBC, The Hualapai nation has exercised this right over a tourist attraction of a walkway in the Grand Canyon. According to the MSNBC news story, “the tribe passed an ordinance last year creating a legal path to effectively cancel the developer's contract through the sovereign right of eminent domain.”

Just how far sovereign rights extend over an indigenous nation’s lands—and what it means to be sovereign—are very important issues. Is “sovereignty” something more than window-dressing? Does it have real power and meaning, or is it somehow watered down when it comes to indigenous peoples and their lands? Especially in light of the human blockade of trucks carrying tar sands pipeline parts on the Lakota Nations land and the ensuing arrests—questions abound about who has what rights on indigenous lands—and who is going to decide. Is this a matter for indigenous jurisdiction or United States domestic (federal or state) jurisdiction? If there is a dispute, who decides?

Tar Sands Keystone XL Pipeline Update

Last Monday, dramatically, there was a human blockade on the Pine Ridge Reservation to prevent trucks carrying heavy loads of parts intended for the Keystone XL pipeline (previous blog post at this link) Though the passage of the trucks was prevented, five people were arrested. This raises some perplexing questions about sovereignty on the Lakota Nations land. Who has the say about what happens on these lands? Whose laws were broken and who is enforcing them? It is also clear that the trucks desired to go through the Lakota Nations land in order to avoid payment of $100,000 of fees for the use of state highways. Heavy trucks do a great deal of damage to roads—thus the high cost of permits. So the route through the Lakota Nation lands was a clear attempt to avoid paying for damage that the trucks would cause—and never mind the great deal of harm that will be caused if the plans for the pipeline were to go through as planned—danger to drinking water, to human health, to the environment. Pipeline proponent thinking at least remains consistent.


This video –showing the protest in action—presents a very clear picture of the arguments against the trucks passing through. If there are standing resolutions which would forbid the trucks to use the Lakota Nations roads, why was it the protesters who were in the end arrested? Does it not matter if the law of the Lakota Nation is violated?

There is at least some good news to report on the latest attempt to push approval of the Tar Sands pipeline through the US Senate. A vote taken last Thursday, March 8, in the US Senate defeated legislation that would have permitted the construction of the tar sands pipeline. Politicians however apparently do not intend to have this as the final fate of the tar sands pipeline, according to comments in this news story on the outcome of the Senate vote.

For those not familiar with the debate on the tar sands and the proposed Keystone XL pipeline, the video “Downstream” presents information on the hazards that the plans present.

The more things change...

There is another new blog on indigenous peoples that started at the end of December 2011, just like TK Totem. Now as TK Totem is trying to get the word out about itself, and let people know it’s here, some people might think it is a bit mad to highlight another indigenous rights blog. I myself do not see blogs in competition—and at any rate, I would be remiss not to shout out about the blog at www.LastRealIndians.com.

It is filled with dynamic posts, fresh points of view, and well-written perspectives. One post in particular caught my eye, and that was the one about “Vine and the Divine.” The blogger, Denny Gayton, discusses the worth of the work of the late Vine Deloria, Jr. There is very little I can add to what has been written; only to say that if you are not familiar with Vine Deloria, Jr and his work, and if you have an interest in indigenous rights, you cannot afford to overlook his work.

I have a well-worn copy of “Behind the Trail of Broken Treaties: An Indian Declaration of Independence” ( at this link here) on my desk. The concluding chapter discusses the importance of reinstating a treaty process between the indigenous peoples in the United States and the United States government. His arguments for the need for this resonate with the arguments being made by the Corroboree for Sovereignty group in Australia ( the subject of this blog post).

“Behind the Trail of Broken Treaties” was written in 1974. A great deal has changed since then—but a number of issues still persist as well—as shown by the parallels that can be drawn from Vine Deloria’s arguments and the current position of the Corroboree for Sovereignty.

Written by Sarah Sargent.

The Corroboree for Sovereignty, the Treaty of Waitangi and Unresolved Questions in International Law

There has been a great deal in the news about Australia Day—26 January—and the protests by the Aboriginal Peoples. In the swirl of these events, other long-standing protests have been overlooked. These other groups of protestors raise claims about sovereignty, the need for treaties, and for re-examining the relationship between the Aboriginals and the government. It is true as well that there is a proposed change to the Australian Constitution, which has been discussed in the blog post by Lucas, but it does not address the deep-seated and persistent issues that are raised by these other protests.

This article here from the Canberra Times notes two other protests, the Corroboree for Sovereignty and a 40 year long tent embassy:

“The three-day Corroboree for Sovereignty, which will run until tomorrow, is being timed to coincide with the 40th anniversary of the Aboriginal tent embassy's establishment in Canberra.”

More information on the Tent Embassy and the Corroboree for Sovereignty can be found at this link. One of the issues put forward is the demand for a treaty between the Australian government and the Aboriginal Peoples. Australia stands in contrast to its near-ish neighbour, New Zealand, in respect of how the relationship between the indigenous peoples and European colonisers was shaped. Australia saw the development of the doctrine of terra nullius, translating literally to “empty land.” In other words, the land was treated as if no one was there—at least no one that the colonisers wanted to or felt obliged to acknowledge. New Zealand, on the other hand, has the Treaty of Waitangi (here is a link to information on the treaty) that governs the relationships between the indigenous peoples of New Zealand and the government. The Treaty is recognised and in effect today. In 1975, an Act was passed that established the Waitangi Tribunal ( link to legislation here).

As explained on the Tribunal’s website, http://www.waitangi-tribunal.govt.nz/, “The Tribunal is a permanent commission of inquiry charged with making recommendations on claims brought by Maori relating to acts or omissions of the Crown that breach the promises made in the Treaty of Waitangi.” In respect of claims made to the Tribunal, it “ has to decide whether, on the balance of probabilities, that claim is well founded. Where the Tribunal finds that such is the case, it may recommend to the Crown means by which the Crown can compensate the claimants, remove the prejudice, or prevent similar prejudice happening to others in the future.”

This is an important mechanism for the recognition and enforcement of Treaty rights—something that is unique in the landscape of treaty rights, sovereignty claims and relationships between indigenous peoples and governments. The UN Declaration on the Rights of Indigenous Peoples provides for the recognition of treaties in Article 37,

“Article 37
1. Indigenous peoples have the right to the recognition, observance
and enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other constructive
arrangements.
2. Nothing in this Declaration may be interpreted as diminishing
or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.”

But the article and the Declaration are silent on how and where these treaties are to be enforced. Are these a matter of international or domestic jurisdiction? And where are indigenous peoples to go with claims of sovereignty—such as those raised by the Corroboree for Sovereignty—and demands for treaties where none currently exist? If the state is unwilling or its responses deemed inadequate, are there grounds for some sort of international claim? And if so, on what basis and where? These and many other questions rise to the fore when considering the claims of the Corroboree for Sovereignty, and the contrasts with treaty arrangements in New Zealand. Whilst many gains have been made in international law for the recognition of the rights of indigenous peoples, many other questions remain unresolved and unanswered.

Written by Sarah Sargent.