A cautionary tale regarding Aboriginal and Torres Strait Islander rights: lessons from US Supreme Court limits on American Indian tribal power

Abstract

ABSTRACTSince the Australian High Court's decision in Mabo v Queensland (No 2), and the Native Title Act that followed, national discussion of the rights of Aboriginal and Torres Strait Islander peoples has primarily focused on land rights. The recent recognition-versus-treaty debate, however, has opened the door for awareness, advocacy and dialogue beyond land rights and including, among others, rights to Indigenous governance and jurisdiction. In the United States, by contrast, American Indians have long held greater rights to governance and jurisdiction than Aboriginal and Torres Strait Islander peoples. Nonetheless, the US Supreme Court has over the past 40 years dramatically restricted this category of rights for Indian peoples. The present article shows how this trend sheds light on potential pitfalls regarding the expansion of Indigenous rights in Australia. An investigation of key US Supreme Court judgments, together with an examination of the historical and contemporary forces that have driven those judgments: (a) reveals possible shortcomings of the Mabo case and the Native Title Act in regard to land rights; and (b) provides insight into the risks of future paths, whether by recognition or especially treaty, to be taken by Aboriginal and Torres Strait Islander peoples in seeking further right.