Comparing Property Rights of Native Americans and Indigenous Australians

Photo by MJ Tangonan on Unsplash

Rebekah Durham, Associate Member, University of Cincinnati Law Review

I. Introduction

Australia and the United States share many common themes in their histories. They were both settled as colonies of Great Britain, gained their independence, and flourished into two of the most affluent western nations on Earth. Australia and the United States also possess very similar legal systems, as both evolved from British common law but since becoming independent, have taken on some of their own features.[1] A less positive element that the two countries share is the expulsion of native populations from their own lands by conquerors claiming the title of a more powerful State. Dozens of Native American tribes were either killed or pushed further and further west by a growing United States throughout the 18th and 19th centuries.[2] While Australia was still under British sovereignty, Aboriginal and Torres Strait Islander peoples were denied their own property rights by a government claiming the authority of the British crown.[3] This article will compare the historical land rights of Native Americans and Aboriginals[4] and their current status in property law, showing how Australia, as a younger nation, might learn from the United States and find a more equitable way to divide title over native lands.

II. A Brief History of Native American Property Rights

The foundational case in Native American property law was decided in 1823, when the United States Supreme Court decided Johnson v. M’Intosh.[5] The dispute in Johnson involved two claims over a certain tract of land in Illinois – one claim based on a purchase from the Piankeshaw Indians before the American Revolution and the other based on a later grant from the United States government.[6] The Supreme Court, in an opinion by Chief Justice Marshall, upheld claim of title that was based on the United States government grant and held that Native Americans were only occupants of their land and “incapable of transferring the absolute title to others.”[7] This case proved to be fundamental not only to American property law, but also to the property law traditions of several other former British colonies, including Australia.[8] Johnson was in one sense an extraordinary case for its time because it recognized a real Native American right of occupancy, which in a might-makes-right world shaped by conquerors and colonizers, was almost unprecedented.[9] But while Johnson did cement at an early date the occupancy rights of Native Americans, it also held that those rights are subordinate to the United States government and can be taken away at any time.[10]

The Johnson decision was rooted in the doctrine of title by conquest. As Chief Justice Marshall explained in his opinion: “Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.”[11] Essentially, he was acknowledging the fact that conquerors have power over the land that they conquer, whether we like it or not. Chief Justice Marshall went on to defend the rights of Native Americans to occupy their land, basing his reasoning on “humanity” and “public opinion.”[12] The end result was that the United States government could legally assert ultimate title to all its lands, a title which trumped the Native American right of occupancy.[13]

The Supreme Court consistently maintained throughout the expansion of United States land ownership that Native Americans did not own the land on which they lived.[14] In 1955, the Supreme Court decided a case called Tee-Hit-Ton Indians v. United States, a dispute over timber taken by the government from the lands of an Alaskan Indian tribe without compensation.[15] The Court reaffirmed that Native American title is really a misnomer, and that their land rights amount to no more than a license to use.[16] Tee-Hit-Ton Indians also held that the Fifth Amendment right to compensation for property taken by the government did not apply to Native Americans.[17] According to the majority opinion, the United States was justified in forcibly seizing Native American property by decades of doing so almost habitually.[18]

Native American tribal lands in the United States today encompass about 52 million acres of land, slightly less than the area of the state of Idaho.[19] These lands, known as Indian Reservations, are held “in trust” by the United States government for the use of specific Native American tribes.[20] Some other land is held in “allotments” by individual tribe members, but the majority of Native American land consists of reservations.[21] These reservations, which were created largely by treaties[22] between the United States government and particular Native American tribes, are “owned” collectively by those tribes under the ultimate title of the United States.[23] This communally owned land is highly regulated by the Bureau of Indian Affairs, and cannot be sold, mortgaged, or transferred.[24] The result is that a majority of Native Americans live on borrowed land that they cannot sell, nor can they capitalize on the natural resources that the land contains. This past term, the Supreme Court considered Native American land rights when it held in McGirt v. Oklahoma that a significant portion of Eastern Oklahoma, almost half the state, continued to be a reservation belonging to the Creek Indians in accordance with the 1832 Treaty with the Creeks.[25] While this victory affirmed the right of the Creek Nation to self-governance, it did not give them meaningful title to the land, as they still could not pass ordinances “affecting the lands of the Tribe” without approval from the President of the United States.[26]

III. A Brief History of Australian Aboriginal Property Rights

Australia only became a fully independent nation in 1986, when the Australia Act was passed and the country was removed from the shadow of British legislative and judicial power.[27] Before 1986, decisions of Australian courts could be appealed to the British Privy Council, and it was only after formal independence was declared that the Australian High Court (“High Court”) was completely free to create common law doctrines distinct from the British tradition.[28] During the time that Australia was still considered a colony subject to British Law, the land rights of Aboriginals were virtually unrecognized.[29] As soon as Australian judicial independence was established, the High Court was faced with one of its biggest challenges – a request for recognition of native title brought by the Meriam people, native inhabitants of the Murray Islands off the northeast coast of Australia.[30]

Mabo v. Queensland was a 1992 case that represented the culmination of a ten-year litigation effort by Eddie Koiki Mabo, a resident of Mer, one of the Murray Islands in the Torres Strait.[31] Before Mabo, the common law considered Australian land to have been “practically unoccupied, without settled inhabitants or settled law,” at the time that British settlers arrived.[32] British claim was based on a common law doctrine known as terra nullius, under which a state can claim land “belonging to no one” through occupation.[33] Because of terra nullius, no native title was recognized at Australian common law before Mabo.[34]

Mabo held that the native islanders were “entitled as against the whole world to possession, occupation, use and enjoyment of the island of Mer.”[35] In reaching this conclusion, it rejected the idea that Australia was terra nullius when British colonizers first arrived. Justice Brennan’s decision stated unequivocally that, “The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country.”[36] With that declaration, native title was first recognized in Australian common law with a validity rooted not in the sovereignty of the British crown, but in indigenous peoples’ continuous observance of “traditional laws and customs.”[37]

The island which was the subject of the Mabo litigation was a miniscule point of land less than two square miles in size, but the acknowledgement of native title in Mabo sparked an intense backlash based on the fear that indigenous claims would displace Australians who were descended from colonizers.[38] The Mabo decision clearly stated that the government could extinguish native title by acting with the “clear and plain intention to do so,” but people nonetheless feared the loss of their land.[39] Mabo also prompted a response from the legislature, which recognized the need to come to some sort of equitable agreement between the land title of non-indigenous Australians and the newly recognized native title of the Aboriginals.[40]

The Native Title Act of 1993 was born out of the contention that followed the Mabo decision.[41] It codified Justice Brennan’s definition of native title based on “traditional laws and customs,” and it established a system by which native title could be applied for and awarded.[42] After Mabo, the standard for showing a valid native title claim rested on a showing of continuous use of land by indigenous people with traditional laws and customs, effectively creating a system where Aboriginals could claim legal title to their land only so long as nobody else was using it.[43] In a small victory for Aboriginal land rights, the High Court’s 1996 decision in Wik Peoples v. Queensland held that the grant of a pastoral lease from the government did not necessarily extinguish a native title claim, provided that the two can co-exist without conflicting.[44] In other words, land could be used to graze livestock under a government lease, without forfeiting the rights of Aboriginals to use that same land. Unfortunately, this was the high point of legal property rights for indigenous people under Australian law. After Wik, a series of cases were decided that effectively removed rights that Mabo and Wik had created from the realm of common law and anchored them instead in the statutory provisions of the Native Title Act.[45]

The problem for indigenous people became apparent when the Native Title Act Amendments of 1998 were passed, a set of revisions which diluted the protections of the original Native Title Act and added a number of additional elements that indigenous Australians must prove in order to claim legal title to their lands.[46] Because the Court had placed the responsibility for supporting Aboriginal land claims on the Native Title Act instead of the common law, the narrowing of the Act’s protections for indigenous land rights essentially restricted Aboriginals to land never touched by the Australian government. Currently, native title rights are recognized on about forty percent of Australia’s land mass.[47] Unfortunately, the amended Native Title Act gives Australian State governments the right to extinguish a native title claim for any matter of “national interest” and flat-out prohibits any native title claim in an urban area.[48] Therefore, much of the native title is over lands in the vast semi-arid center of Australia, which is almost uninhabitable.[49]

IV. Discussion: Comparing Australia and the United States

The United States’ position toward the legal property rights of Native Americans became a settled issue over a century ago, and it has barely changed since. While the United States was one of the first nations to recognize the rights of indigenous people groups to possess the land that they had historically occupied, it has made negligible progress toward fairly acknowledging Native American title since that first achievement back in 1823. The fact that Native American lands are held in trust by the United States means that the government, as trustee, is in charge of deciding what can and cannot be done with the land. Limitations on land use, even if intended to preserve Native American land in its original state, have stifled any possibility of economic growth and condemned Native Americans to living forever in the 17th century. 

The results of this over-regulation are striking. Native American reservations are some of the most poverty-stricken and crime-filled places in the world, despite being surrounded on all sides by the affluence of the United States.[50] As Naomi Schaeffer Riley put it in a 2016 article for The Atlantic, many reservations “resemble nothing so much as small third-world countries in the middle of the wealthiest nation on Earth.”[51] Despite the fact that the Bureau of Indian Affairs receives billions of dollars annually to use in education, support, and development for Native American tribes, economic activity on reservation lands is almost nonexistent.[52]

Australia, in contrast to the United States, is still working through the process of finding a stable arrangement between the land rights of its native inhabitants and the rights of those descended from colonizers. Because Australia is such a young nation, and because it has the example of the United States and other former colonies to learn from, Australia still has the opportunity to fashion an approach of cooperation between natives and newcomers in an area where many nations before it have failed. The precise nature of the native title recognized by Mabo was not well defined, but it seems to fall somewhere in between the limited right of occupancy possessed by Native Americans and the ultimate title held by the government.[53]

The foundation that was laid in Mabo has the potential to support a real and workable framework for giving legal land rights to Aboriginals. The native title recognized in Australia is superior to the reservation system in the United States because it gives more freedom to indigenous residents to use their land as they see fit. Because much of the continent of Australia is unlivable, however, the Australian legislature or the High Court should set a different standard for awarding native title than the current one contained in the Native Title Act. Common law cases such as Mabo and Wik used language of co-existence and harmony, but the statutory scheme laid out by the Native Title Act does not allow native title claims in any urban area. It permits the rejection of native title claims whenever they would conflict with the “national interest.” This means that the small tracts of fertile land near the Australian coast, which are already claimed by non-indigenous Australians, will be off-limits to Aboriginal claimants. Instead, the land to which they will be permitted to hold title will consist almost exclusively of uninhabitable desert. If Australia wants to obtain an equitable result at the end of the process of determining native title claims, it will have to acknowledge certain Aboriginal land rights in areas where the government may already claim the land for pasture, mining, or other purposes. 

Somewhat superficial attempts to improve relationships between indigenous and non-indigenous people have been implemented recently in both countries. In Australia, the 26th of May is “National Sorry Day,” a day meant to acknowledge and commemorate the mistreatment of native peoples.[54] In the United States, a popular trend is to remove references to Native Americans from sports mascots, and thus Washington D.C. is currently home of the “Washington Football Team” instead of the Washington Redskins.[55] Another common way to show respect for Native Americans is to avoid celebrating “Columbus Day” in favor of “Indigenous Peoples Day.” While there is nothing particularly wrong with any of these gestures, none of them will remedy the damage done to native populations by the destruction of their property rights. If Native Americans and Aboriginals are to flourish – or even to escape from abject poverty – they must be able to buy, sell, develop, and utilize the resources around them. They must be permitted to claim some sort of meaningful title to the land on which they live.

V. Conclusion

The unwillingness of both the United States and Australia to give any real property rights to the indigenous people whose land they took has condemned many native tribes in both countries to live in poverty and exclusion. Native Americans live on land held in trust by the United States government, while Aboriginals and Torres Strait Islanders can only claim title to land of such poor quality that nobody else wants it. The only way for these indigenous people to raise their quality of life is by being permitted to reap the rewards of their own labor, own their land, and use it how they see fit. A long tradition of United States property law makes this a remote possibility in the States, but Australia, which is still not fully settled with regard to allocation of title, may yet find a way to share their land with a balance of equity and harmony.

[1] Mary Ann Glendon, Common Law, Encyclopedia Britannica (last visited Oct. 23, 2020).

[2] Elizabeth Prine Pauls, Native American, Encyclopedia Britannica (last visited Oct. 23, 2020).

[3] Brian Keon-Cohen, Native Title: The Mabo Litigation: A Personal and Procedural Account, 24 Melbourne U. L.R. 893.

[4] For brevity in this article, the term “Aboriginals” will be used broadly to indicate Aboriginal and Torres Strait Islander peoples.

[5] Johnson v. M’Intosh, 21 U.S. 543 (1823).

[6] Id.

[7] Id. at 591.

[8] Mabo v Queensland [No. 2] (1992) 175 CLR 42 (quoting Deane J. Gerhardy v Brown (1985) 159 CLR 70, at p 149)(Austl.); Keon-Cohen, supra note 3 (explaining that the principles laid down by Chief Justice Marshall in Johnson were followed by New Zealand, Canada, the Privy Council on appeal from African States, and the International Court of Justice).

[9] Johnson, 21 U.S. at 592.

[10] Id. at 588.

[11] Id.

[12] Id. at 589.

[13] Abraham Bell and Gideon Parchomovsky, Property Lost in Translation, 80 U. Chi. L. Rev. 515, 524 (2013).

[14] Id. at 525-26.

[15] Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955).

[16] Id. at 279.

[17] Id. at 288-89.

[18] Id.

[19] Frequently Asked Questions, U.S. Department of the Interior Bureau of Indian Affairs, (last visited Oct. 15, 2020).

[20] Id.

[21] Id. (Discussing how during the late nineteenth and early twentieth centuries, many Indian Reservations were broken up by the U.S. government and either allotted to individual Native Americans or sold to white settlers. This process resulted in significant loss of land for Native Americans, and today about ten million acres is held by the heirs of allottees).

[22] Id. (“Congress ended treaty-making with Indian tribes in 1871.  Since then, relations with Indian groups have been formalized and/or codified by Congressional acts, Executive Orders, and Executive Agreements.”).

[23] Naomi Schaeffer Riley, One Way to Help Native Americans: Property Rights, The Atlantic (July 30, 2016)

[24] Id.

[25] McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).

[26] Id. at 2466.

[27] Keon-Cohen, supra note 3.

[28] Id.

[29] Maureen Tehan, Critique and Comment: A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act, 27 Melbourne U. L.R. 523, 527.

[30] Mabo v Queensland [No. 2] (1992) 175 CLR 1.

[31] Keon-Cohen, supra note 3.

[32] Cooper v. Stuart (1889), 14 App Cas 286, 291 (Lord Watson).

[33] Terra Nullius Law and Legal Definition, (last visited Oct. 15, 2020).

[34] Tehan, supra note 29, at 528 (explaining that although native title was not recognized at common law before Mabo, the Aboriginal Land Rights (Northern Territory) Act of 1976 and a handful of state statutes, including the Aboriginal Land Rights Act 1983 in New South Wales and the Aboriginal Lands Act 1970 in Victoria, granted at least nominal title to certain groups of native inhabitants).

[35] Mabo 175 CLR 97.

[36] Id. at 42.

[37] Id. at 64, 66.

[38] Tehan, supra note 29, at 528.

[39] Mabo 175 CLR 75; Tehan, supra note 29, at 528.

[40] Id.

[41] Id. at 543.

[42] Mabo 175 CLR 97; Tehan, supra note 29, at 545-548.

[43] Id. at 563.

[44] Wik Peoples v Queensland (1996) 187 CLR 1.

[45] Tehan, supra note 29, at 557-58 (referring to Western Australia v Ward (2002) 197 ALR 1, and Yorta Yorta v Victoria (2002) 197 ALR 538. Tehan explains that Ward found that Mabo and Wik were only relevant to the extent that they shed light on the Native Title Act and Yorta Yorta emphasized the continuous use requirement under the Act).

[46] Id. at 555, 563.

[47] Land and Housing, National Indigenous Australians Agency, (last visited Oct. 15, 2020).

[48] Transcript of Prime Minister John Howard’s Wik 10-Point Plan, The Department of the Prime Minister and Cabinet Wik Task Force (May 1, 1997)

[49] Review of the Native Title Act 1993 (DP 82), Progress to Date, Australian Law Reform Commission (Oct. 21, 2014)

[50] Naomi Schaeffer Riley, One Way to Help Native Americans: Property Rights, The Atlantic (July 30, 2016)

[51] Id.  

[52] Id.

[53] For example, Mabo recognized that native title could not be extinguished without compensation, Mabo 175 CLR 59, unlike Native American title as seen in Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955).

[54] Jennifer Latson, This is Why Australia has ‘National Sorry Day’, Time Magazine (May 25, 2015)

[55] Jeremy Bergman, Washington will go by ‘Washington Football Team’ until further notice, (July 23, 2020)

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