Why Restrain Alienation of Indigenous Lands?

Abstract

This paper provides the first comprehensive account of the rule against alienating indigenous lands to private parties, that is to say, parties other than the government. This rule exists, in common law and statutory forms, across common law settler societies, including the United States, Canada, Australia, and New Zealand. The author provides an historical account of the development of the rule, outlining the ways in which the rule was seen to be justified across different time periods. The paper argues that none of the historical bases for the rule, which range from considerations of military strategy to outright racial paternalism, can provide an adequate justification for the rule in the present day. After providing an account of the current legal regimes in these four countries, the author sets out a contemporary justification for the rule, rooted in the collective autonomy and cultural integrity of indigenous groups. This is approached primarily from two angles. In economic or welfare-oriented terms, alienations of parts of a community's land base may impose a cost on members of the group by reducing the group's capacity to preserve its culture and way of life, goods which can only be enjoyed in collective form. Alternatively, one can take collective autonomy and cultural preservation as goods not fully reducible to welfare. Erosions of the group's land base impinge on its ability to exercise collective autonomy, especially if governance jurisdiction is linked to land ownership. The paper also considers the relevance of arguments based on indigenous sovereignty and distinctive indigenous approaches to land. Finally, the author outlines a set of promising alternative institutional arrangements that might reconcile the interests at stake in ways other than through a rigid prohibition on alienation to private parties.