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INDIGENOUS SOVEREIGNTY AND THE DEMOCRATIC PROJECT To Helen, the one and only Indigenous Sovereignty and the Democratic Project STEVEN CURRY Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia First published 2004 by Ashgate Publishing 2 Park Square, Milton Park, Abingdon, Oxfordshire OX14 4RN 52 Vanderbilt Avenue, New York, NY 10017 Rout/edge is an imprint of the Taylor & Francis Group, an iriforma business First issued in paperback 2020 Copyright © Steven Curry 2004 All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data Curry, Steven Indigenous sovereignty and the democratic project. - (Applied legal philosophy) l.lndigenous peoples -Legal status, laws, etc. 2.lndigenous peoples -Politics and government 3.lndigenous peoples -Government relations 4. Sovereignty 5.Democracy I.Title 342'.0872 Library of Congress Cataloging-in-Publication Data Curry, Steven, 1969- Indigenous sovereignty and the democratic project / Steven Curry. p. cm. --(Applied legal philosophy) Includes bibliographical references and index. ISBN 0-7546-2340-8 1. Indigenous peoples--Legal status, laws, etc. 2. Indigenous peoples--Government relations. 3. Sovereignty. 4. Self-determination, National. I. Title. H. Series. K3247.C872004 341.26-dc22 2003025602 ISBN 13: 978-0-7546-2340-3 (hbk) ISBN 13: 978-1-138-25832-7 (pbk) DOI: 10.4324/9781315252384 Contents Series Preface vi Acknowledgements vii Introduction 1 PART ONE: NATIONS WITHIN 1 We are only Demanding our Country 13 2 Playing with the Umpire 25 PART TWO: LONG LIVE THE KING! 3 Long Live the King! 43 4 The Act of State 57 5 State and Nation 71 PART THREE: BORN TO RULE 6 We the People 89 7 Imagining the People 105 8 The Appeal to Heaven 115 9 Bom to Rule 127 PART FOUR: INDIGENOUS SOVEREIGNTY 10 Applications and Limitations 141 11 On a New Republic 159 Bibl iography 175 Index 181 Cases and Legislation 183 Series Preface The principal objective of this series is to encourage the publication of books which adopt a theoretical approach to the study of particular areas or aspects of law, or deal with general theories of law in a way which is directed at issues of practical, moral and political concern in specific legal contexts. The general approach is both analytical and critical and relates to the socio-political background of law reform issues. The series includes studies of all the main areas of law, presented in a manner which relates to the concerns of specialist legal academics and practitioners. Each book makes an original contribution to an area of legal study while being comprehensible to those engaged in a wide variety of disciplines. Their legal content is principally Anglo-American, but a wide-ranging comparative approach is encouraged and authors are drawn from a variety of jurisdictions. Tom D. Campbell Series Editor Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Canberra Acknowledgements The substance of the manuscript was written during the three-and-a-half years from 1996 when I held an Australian Post-Graduate Award, funded by the Commonwealth Government of Australia and awarded to me by Monash University. Without this generous support I would not have been able to complete this task. Monash University also supplied me with a home away from home at the Postgraduate Centre, where I was able to work without interruption, and to rely upon the unfaltering professionalism and good humour of the Centre staff. I would in particular like to thank Mrs Anna Hussar. The manuscript was completed and prepared for publication with the support of Charles Sturt University and the Centre for Applied Philosophy and Public Ethics. Barbara Nunn, Research Assistant at the Centre and my valued colleague at Wagga Wagga, gave invaluable assistance in laying out the text for printing and in preparing the final draft for publication. I owe a great debt of gratitude to Professor Chin Liew Ten, my supervisor at Monash University. Professor Ten’s constructive criticisms eliminated more gross errors than remain in this work, without ever threatening the delicate edifice of my self-confidence. I must acknowledge that the impetus for including an extended passage on the work of Gerald Gaus came from him. I have benefited greatly from his considerable expertise on J.S. Mill and the philosophy of law. The work has also benefited greatly from the input of other staff and students at the Department of Philosophy at Monash University (now the School of Philosophy and Bio-ethics). Many people kept me afloat through their constant good-humoured support, administrative nous and intellectual engagement. I must thank John Bigelow, who encouraged me to join his philosophical family; Karen Green, who offered a challenging alternative view on my work in Professor Ten’s absence and largely encouraged the writing of much of Chapter Two; Lindy Antippa, Linda Peach and Lesley Hamilton, who seemed able to solve my every daily crisis without running out of patience; Swamp Dwellers one and all, who defined the post-graduate experience and genuinely cared about each other, especially Susan Rogerson my collaborator on other projects, the afternoon discussion circle (you know who you are), and Neil Levy, without whom the bibliography would still not be finished. I wish to thank the organizers of, and participants in, the Indigenous Rights Stream of the 1998 meeting of the Australasian Association for Philosophy at Macquarie University. Ross Poole, Purushottama Bilimoria and Dianne Russell offered comments that substantially shaped much of what I have gone on to say. At this meeting I was challenged to resolve a number of inconsistencies in my early conception of this project. viii Indigenous Sovereignty and the Democratic Project I owe very warm thanks to the staff of the Humanities and Law Libraries of Monash University, who often acted as my guides and gave freely and generously of their time and expertise. Thanks are due to Professor Ross Poole and Professor David Lyons who examined my thesis and offered very useful comments, and to Ross Cornwell and Jennifer Clarke who commented on the manuscript. Their feedback has been essential in refining the.work. The remaining infelicities and errors are all my own work. Finally, but far from least, I wish to thank my family, Helen and Jessica Taylor, who walked the whole distance with me and never once complained about the weird hours, the travel or the short rations. Thank you. Introduction In 1867 Karl Marx wrote, of the British occupation of Ireland, that ‘any nation that oppresses another forges its own chains’.1 He was concerned by what he saw as the British working class binding itself to its own oppressors (the British ruling class) by subscribing to imperialist doctrines of racial superiority and national chauvinism. In some respects the concerns of this book are different, but the temper of Marx’s thoughts in 1867 resonate in the present, for we must continue to fear that any injustice we do will serve to undermine, even destroy, our capacity to do justice. We might even discover that we have distorted our conception of justice to fit around the manifest wrongs we ignore, so that we no longer recognize injustice for what it is. One of many concerns residents of industrialized liberal-democracies must have is that the liberties, rights and privileges we take for granted are denied to others who must have just the same claim to them that we have.2 Of these people, those closest to home live in our own countries: the poor, the homeless, immigrants and guestworkers, and especially indigenous peoples. Even in wealthy nations like Australia and the United States indigenous peoples experience standards of living that are both absolutely and relatively low. Children die young; poverty and lack of opportunity are commonplace; people contract and die from preventable diseases.3 But perhaps uniquely among the disenfranchised in our societies indigenous minorities suffer a kind of political injustice which it seems could not be rectified by their being equally represented in our political and economic institutions and placed within normal statistical distributions in social indicators.4 The unique status of indigenous peoples is expressed by the assertion of indigenous sovereignty, a call which we will look at in detail in the first chapter. My concern lies with this sovereignty claim, and my feeling that we desperately need to know what a claim of this type amounts to, and whether or not it obliges us to do something substantive in the name of justice. The title of this book suggests a number of concerns. The first of these is the concern to find out just what indigenous sovereignty amounts to (if anything), and what sovereign claims we must recognize on the part of indigenous peoples at the dawn of the third millennium. The second of these is to discern just where we might have failed to do justice to these claims, so that we might be better able to strive after justice in the future. Third, and most significantly, is to discover just how any injustices we have done will affect our commitment to democratic government, and all that is said to be good in it, especially given that many of us will believe that we live in societies which are, in Rawls’ words, very ‘nearly just’ in virtue of their being democratic ones. If we have ridden roughshod over the interests of indigenous citizens then we have also cast doubt on the ideals of human rights and popular sovereignty upon which democratic societies are supposed to be built. DOI: 10.4324/9781315252384-1