Comparing Indigenous Land Rights in the U.S., Canada, Australia, and New Zealand

Originally published April 19, 2023

England in the early 1600s launched a process of settler colonialism distinct from the small-scale settler colonialism of France, the Netherlands, Spain, and Portugal. Decentralized colonies sprang up quickly in North America, and later in Oceania, after the 1780s, even as some of the American colonies separated from the Crown following the American Revolution. Coordinated, market driven, and high fertility, English settlement imported common law and burgeoning populations to three different large land masses.

The U.S., Canada, Australia, and New Zealand have an unusual genesis as settler societies, expanding rapidly first in the age of sail, and then with railroads and highways. The rapid growth of these countries came at the expense of indigenous people, who died off in large numbers exposed to European diseases, or fared poorly due to the coordination and numbers of people brought to bear by settlement. The die off of as many as 90 percent of indigenous people in some parts of these countries paved the way for astonishing growth and a cultural sea change seen almost nowhere else in the world.

Despite heavy losses, indigenous people did survive, forcing governments in all four countries to develop unique bodies of law to deal with indigenous people and their remaining land. This paper will compare how these four countries—that share a common heritage of English common law—have dealt with indigenous land rights from their inception to the present day. In particular, analysis will focus on aboriginal land claims and land rights, which given the complexities of this area of law bears relation to aboriginal status and jurisdiction.

This paper compares the different ways that each of these four countries has dealt with indigenous land rights. Part I will examine the history of governmental legal relations with indigenous people in the U.S., Canada, Australia, and New Zealand. Part II will assess commonalities and differences between the three systems. The U.S. has gone the farthest in allowing indigenous self-government with federally recognized tribes, tribal courts, reservations, Indian gaming, and special property rights in Indian artifacts. Canada has a similar system, albeit more centralized to the federal government in Ottawa. Australia and New Zealand are only slowly beginning to recognize indigenous self-government and traditional land claims as part of legal transformations that began in the 1960s. Different path dependencies, like the relative survival and integration of indigenous groups likely explain these differences, while common eras of legal thought have transformed each country’s legal relationship with indigenous citizens.

I. CONTACT, CONQUEST AND CONTROL

A. United States of America

The first humans are believed to have arrived in North America 15,000 years ago from Siberia, soon diversifying into numerous linguistic and cultural groups: today’s Native American groups. In 2020, the Census Bureau reported that approximately 9.7 million U.S. citizens are Native American or Alaska Native, the descendants of around two percent of the original population that survived war and disease during the European settlement of North America.

British colonization involved more settlers than French or Spanish colonization, which often prioritized large land grants or fur trapping. British settlers clashed with Indians in the North American settler colonies as early as 1622. During the 1636 Pequot War, settlers crushed the Pequot Indians in Connecticut. Settlers in New England were almost displaced by the 1675 King Philip’s War, but the assassination of Metacom (also known as King Philip), the Narragansett leader resulted in a British victory. European powers staged several worldwide wars in the 18th century that typically pitted France and Indian allies against Britain. France was forced to yield many of its North American territories when it lost the Seven Years War, placing Indians in a dangerous position within territories claimed by Britain.

Despite the bruising loss of Seven Years War and the continued harm of European diseases, Indians enjoyed some protections from London. In British North America, the King imposed a ban on settlement west of the Appalachians, adding to a list of grievances seized upon by the American colonists in the American Revolution. The early U.S. grew rapidly westward through a combination of land purchases and conquest, resulting in conflict with indigenous peoples. Mass deportations of Native Americans characterized the early decades of the republic, followed by a period of internecine conflict and massacres on the frontier. In Johnson v. M’Intosh, in 1823, the Supreme Court famously asserted federal authority over Indian tribes based on the doctrine of discovery. By asserting broad federal authority over Indians, the case paved the way for subsequent forced removal of Indians to reservations.

In the South, the so-called “Five Civilized Tribes,” the Cherokee, Creek, Chickasaw, Choctaw, and Seminole tribes engaged in advanced trade and agriculture, held slaves, and used written languages. Despite the cultural similarities between the Five Civilized Tribes and white Georgia citizens, Georgia urged Congress to act against the tribes to clear land for farming and gold prospecting. The Supreme Court, led by Chief Justice Marshall held for the Cherokee and indicated that tribes are in effect domestic dependent nations. Nonetheless, the Andrew Jackson Administration went ahead with the deportation of Cherokees westward to Oklahoma resulting in 8,000 deaths along the Trail of Tears. Native Americans, even those with Westernized American customs were seen as occupying valuable land that could be freed up for agriculture and inhabitation by new arrivals.

A little more than a decade later, the U.S. launched the Mexican-American War, seizing huge swaths of territory in northern Mexico, parts of which were already depopulated of Mexican nationals by Comanche raiding on the Plains. As a condition of the Mexican Cession, the U.S. agreed in the Treaty of Guadeloupe-Hidalgo to eliminate the Comanche threat posed to northern Mexico. The addition of lands in the West as a result of the Mexican Cession and the settlement of territorial disputes with Britain in the Pacific Northwest increased territorial conflict between European settlers and Indians, particularly as American settlements appeared in the fertile Willamette Valley of Oregon and the San Francisco Bay as a result of the 1849 gold rush.

State governments and private actors were often as callous as the federal government in their treatment of Native Americans. In perhaps the most extreme example, California in 1850 passed Chapter 133, effectively authorizing genocide against its native residents, including taking natives into indentured servitude. By the early 1870s, as many as 16,000 native California Indians were exterminated or worked to death.

In the aftermath of the Civil War, Congress feared disunity in the U.S. Native Americans were perceived as standing in the way of economic progress and particularly in the West still controlled valuable lands that the government wanted to open up for settlement. Perhaps due to federal experience with the Five Civilized Tribes, Native Americans were viewed as being on a more equal footing with white Americans in the 19th century’s racial hierarchy if they could be retrained in the ways of “civilization.” In 1871, the President and Senate were formally stripped of their power to negotiate treaties with tribes, but in fact agreements continued to be made, adopted as legislation by Congress.

After the end of formal treaty making, Congress shifted from a nation-to-nation approach to dealing with Indians to a more unilateral policy of assimilation. Between 1887 and 1934, the Department of the Interior allotted parcels of land to Indian heads of households. The land would be held in trust for twenty-five years, before the Indian owner gained full-title. But full-title would expose these properties—many on marginal land—to state and local taxation, often resulting tax foreclosure. The result was a rapid fragmentation of Indian lands, with the goal of assimilating Indians with the rest of American society.

Even as tribes were dismantled through federal Indian land policy, the federal government launched a formal policy of assimilating Native Americans culturally through the form of forced enrollment of native children in boarding schools after 1879. In the words of Richard Henry Pratt, the founding director of the Indian residential Carlisle School, the goal of the Bureau of Indian Affairs was to “Kill the Indian, save the man,” by requiring English usage and converting Indians to Christianity. Between 1879 and 1960, an estimated 100,000 Native American children passed through boarding schools, and even as late as 1971 seventeen percent of Native American children were in foster care or institutions. Indians also lost out at the state level, particularly in the binary racial system of the Jim Crow South. The Houma Indians in Louisiana, for instance, were classified as “coloured” by the state supreme court in 1918, and were subject to racially segregated schools. Houma marriages were unrecognized by the state and as a result Houma children were illegitimate and could not inherit land. Once oil was discovered in the region, private actors exploited lack of English knowledge among the Houma to fraudulently acquire land and conduct tax sales.

The allotment system greatly weakened the potential for Indian jurisdiction and self-government by physically fragmenting land. The Bureau of Indian Affairs was forced to confront the scathing Meriam Report which relayed terrible conditions on reservations and poor land utilization with the trust system that prevented clear title and access to loans. The Indian New Deal began in 1934 with the Indian Reorganization Act, the first statute that allowed tribes to opt out of federal legislation, ending further allotments and directing the Secretary of the Interior to repurchase land for tribes.

Congress changed course again in 1953 with a fresh embrace of assimilationist policies. Although the boarding schools program formally ended with the 1953 Indian Termination Act, the Act had other far-reaching consequences terminating tribal governments, eliminating recognition, revoking federal funds, and privatizing tribal businesses. With the passage of Public Law 83-280, Congress terminated its relationship with 109 tribes and ordered that tribal lands be privatized to individual tribal members. Six states gained full civil and criminal jurisdiction over Indian reservations.

President Johnson signaled a different direction with the passage of the Indian Civil Rights Act, in 1968, mandating tribes to follow many aspects of Constitutional law, and established the National Council on Indian Opportunity (NCIO)—although the Johnson Administration’s efforts may have been largely assimilationist. The Nixon Administration pushed for tribal self-determination, which took the form of the Indian Self-Determination and Education Assistance Act.

The 1970s brought a fresh assertion of treaty rights to reservation and off-reservation property rights. In United States v. Washington, in 1974, the U.S. sued to settle Indians’ off-reservation treaty fishing rights. Judge Boldt, deciding the case in favor the Indians looked at what the Indians would have understood at the time the treaty was negotiated. “There is no indication that the Indians intended or understood the language ‘in common with all citizens of the Territory’ to limit their right to fish in any way.” Considering what the signers of the treaty would have understood at the time, communicating in Chinook Jargon, the Ninth Circuit held for the Indians again in 2017, when faced with a challenge to culvert construction by the State of Washington.

Congress essentially created new property rights in Indian cultural artifacts in 1990, as part of an effort to right historical wrongs and bolster tribes. The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) is the cornerstone of a statutory regime intended to better protect Native American cultural artifacts. NAGPRA provides that items may be excavated with a permit under section 4 of the Archaeological Resources Protection Act of 1974, in consultation with tribes.

NAGPRA emerged in 1990 out of the Reservoir Salvage Act of 1960, the Archaeological Resources Protection Act, the American Indian Religious Freedom Act, and the 1989 National Museum of the American Indian Act. NAGPRA applies to four types of items: (1) human remains, (2) funerary objects, (3) sacred items, and (4) objects of “cultural patrimony.” Items of cultural patrimony are “items having ongoing historical, traditional, or cultural importance central to the Indian tribe or Native Hawaiian organization itself.” Courts have upheld “cultural patrimony” against void for vagueness constitutional challenges, such as affirming the conviction of an art dealer selling Hopi masks. Many states have adopted state-level statutes similar to NAGPRA. The advent of NAGPRA at the federal level, and similar legislation at the state level is in effect a legislative record of governmental interest in proactive protection of Native American culture.

On reservations experiencing new forms of self-government, Indians began a process of tribal entrepreneurship within the unique jurisdiction of reservations. In 1979, the Micossukee Tribe in South Florida opened the first Indian casino in the U.S. Indian gaming has emerged as a major industry, and a key economic driver for many reservations. The Supreme Court in 1987 held that Indian tribes could regulate gaming free of state interference. Congress subsequently passed the Indian Gaming Regulatory Act of 1988. The statute created three categories of Indian gaming, including Class I traditional Indian gaming and low stakes games that fall under Indian jurisdiction. Although many casino activities like blackjack, craps, and roulette fall under the broadly defined Class III, outside of sole Indian jurisdiction, the Act created a framework for tribes to negotiate pacts with state governments to establish casinos.

Today, land held collectively by Indians is referred to as Indian Country. Land policy looms large on Indian reservations. Despite the post-1968 federal support for tribal sovereignty, large areas of land are still held in trust by the federal government, wherein title rests with the federal government while individual Indians (or tribes) have a right to use the land. Trust land is encumbered by complicated bureaucratic processes: even obtaining a mortgage requires approval from the Secretary of the Interior. Tribes have limited recourse in statute to challenge federal breach of fiduciary duties on trust lands.

Indian tribal jurisdiction is extremely chaotic. State governments often assert jurisdiction over state highways that travel through reservations and water rights. Nevertheless, tribal jurisdiction—and entire tribal court systems—have appeared since the 1970s. Particularly with the rise of Indian gaming, many tribes employ large numbers of nonmember employees and vendors. Similarly, many non-residents married to tribal members or those that provide services on reservations enter into leases on reservation land. Members and nonmembers alike may be haled into tribal courts in civil cases, and may even be asked to serve on tribal juries.

A pair of Supreme Court cases in 1976 and 1993 held that states may not regulate on Indian lands, although the six states governed by Public Law 280—Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin—are an exception. In 1987, the Supreme Court indicated that tribes have “presumptive” jurisdiction over nonmembers on a reservation, but subsequently left the question open. Tribes can also exercise criminal jurisdiction, concurrent with federal jurisdiction under the 1885 Major Crimes Act. U.S. v. Lara in 2004 affirmed that tribes posses the power to prosecute rooted in tribal sovereignty rather than federal delegation. The scope of Indian jurisdiction remains uncertain. The Supreme Court in 2020 in McGirt v. Oklahoma held that Congress never extinguished the Creek Reservation in eastern Oklahoma, and therefore the Major Crimes Act applied to all Indians in the region.

Since the late 1960s, the U.S. has revamped tribal sovereignty, tribal jurisdiction, and Indian land claims. It created a legal framework for Indian gaming, permitted tribal courts, restored many traditional hunting and gathering rights recognized in treaties, and even created a form of property right in Indian crafts and Indian artifacts. Nevertheless, this legal transformation is incomplete, granting an outsized role to the federal government in Indian affairs, stunting property rights, and leaving many jurisdictional questions uncertain.

B. Canada

In its North American territory that would later become Canada, Britain displaced France as the major colonial power and ultimately assumed control of land held privately by the Hudson’s Bay Company. Britain initiated over 400 treaties with Indians. The Crown did not permit negotiation. Rather, if Indians opted in to treaties they would gain protection from encroachment on their land, annuities, goods, and protected game rights. Treaty designated Indian lands came to be known as “reserves.”

Indians have occupied a place in the Canadian constitutional framework since the early origins of Canadian constitutional law with the Royal Proclamation of 1763. Even before the 1867 Canadian Confederation, Canadian legislatures created statutes addressing Indian status, notably An Act for the protection of the Indians in Upper Canada, in 1850. The Act extended protections against intrusion onto Indian lands in Ontario. Seven years later, An Act to Encourage the Gradual Civilization of Indian Tribes in This Province and to Amend the Laws Relating to Indians created a definition of who qualified as an Indian, including those “Indian blood or intermarried.” Canada rotated through several different definitions before adopting the 1951 Indian Act, creating a register of Indian band members.

The Privy Council in London made a similar determination to the U.S. Supreme Court’s Johnson v. M’Intosh holding in its 1888 decision, St. Catherine's Milling and Lumber Co. v. The Queen. The Council held that discovery vested title over Canada in the Crown. Lord Watson, in the Council’s holding, indicated that the sovereign could extinguish native title in land if they chose to do so. Decades later, in 1974, the Canadian Supreme Court reaffirmed this view in Calder v. Attorney General of British Columbia.

The Canadian government did choose to extinguish Indian title in the late 19th century. Between 1871 and 1921, it extinguished most Indian title in the prairie provinces using the Natural Resource Transfer Agreements to provide hunting, fishing, and gathering rights in exchange for the extinct title.

Both the Canadian Constitution of 1867 and 1982 grant Parliament exclusive power over Indians. The Indian Act of 1876 created limited self-government for Indians with the goal that Indian bands would come to conform with non-Indian communities around them. The 1985 Indian Act also took a limited approach to Indian self-government. The Minister of the Department of Indian Affairs and Northern Development exercised the power to control band finances and the structure of band government, with further limits on bands imposed by preexisting treaties and provincial law.

Canada entered a new phase of relationships with Indians in 1995, with the Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government. Today, most bands are still governed by the Indian Act, with very limited self-government, and most power exercised through control over land allotment. As of 2020, 43 Indians bands have removed themselves from the provisions of the Indian Act and negotiated self-government agreements with the Canadian government.

Indigenous Canadians won a few major victories in the 1990s. First among these victories was the shift in federal attitudes toward negotiated self-government. In 1999, the Canadian Parliament broke up the vast Northwest Territories, creating Nunavut with the Nunavut Act and Nunavut Land Claims Act as a self-governing Inuit region. Nunavut is one of four self-governing Inuit regions. In Nunavut, together with the Kativik Regional Government, government is open to all residents regardless of Inuit status, whereas Nunatsiavut in northern Labrador is exclusive to Inuit people. The 1990 case R. v. Sparrow also proved pivotal. The Canadian Supreme Court held that the exercise of federal power—such as the enforcement of fishing laws—must be balanced with the government’s fiduciary duty to Indians.

In stark contrast to the U.S. adoption of Indian gaming, Canada amended its Criminal Code in 1985 to grant provinces exclusive authority over gambling. At the time, the Shawanga First Nation in Ontario had opened a gambling parlor perhaps attempting to stake out a situation similar to tribes in the U.S. The Ontario Provincial Police arrested the band’s current and former chief, and both were convicted. On appeal, the Canadian Supreme Court held that there was no aboriginal right to conduct gambling operations, essentially foreclosing Indian gaming in Canada.

Prior to the 1960s, Canadian courts seldom upheld Indian hunting, fishing, and gathering rights. In its 1996 Van der Peet decision, the Canadian Supreme Court indicated “[A]boriginal title, and aboriginal rights in general, derive from historic occupation and use of ancestral lands by the natives and do not depend on any treaty, executive order or legislative enactment.” As such, Indians enjoy constitutional rights different than those of other Canadians.

Hunting rights have played a role in broadening the rights of Metis—a group of indigenous Canadians of mixed European and Indian heritage prominent in the prairie provinces, and first formally recognized in the 1982 Constitution. In 2003, Metis petitioners prevailed in R. v. Powley creating a test for Metis community rights and expanded hunting rights in land allocated by the federal government in the 1870s. Metis petitioners gained further recognition in the 2013 MMF v. Canada decision and 2016 Daniels v. Canada which held that the federal government followed improper constitutional process when it ceded Metis land to Manitoba, and therefore federal jurisdiction should apply to Metis people. Thus far, the rulings have not reversed the status of land rights in provinces like Manitoba but did prompt the Canadian government to provide new financial support to the Manitoba Metis Federation after 2018.

Indigenous self-governance is still in its infancy in Canada. The federal government remains the primary force in the lives of most reserve dwellers under the Indian Act and maintains considerable trust land, like the U.S. federal government. Despite this overall state of affairs a series of Canadian Supreme Court decisions and new treaty negotiations are changing the nature of land rights, self-governance, and jurisdiction.

C. Australia

Australia was settled around its coasts at approximately the same time, in contrast to the east-to-west settlement pattern of the U.S. and Canada. Founded as a British penal colony in the 1780s, Australia soon emerged as an egalitarian frontier society founded on the export of agricultural goods and mining. British settlers encountered Australian Aborigines with very low levels of technology, even compared with Indians in North America. Through disease and intentional conquest, many of these groups were virtually extirpated.

Exact demographic estimates of pre-contact population in Australia do not exist, although historical evidence suggests dramatic population losses. Because of a dramatic imbalance in technology between Aborigines and British settlers, British settlers often massacred Aborigines outright or even hunted individual Aborigines for sport, rather than engaging in the kind of organized wars seen in North America and New Zealand. British military units massacred Aborigines in New South Wales and Van Diemen’s Land throughout the first two decades of the 19th century to clear the way for crops and livestock needed for the colonies to survive. Estimates suggest that Aborigine population in Victoria dropped from 10,000 in 1835 to less than 2000 by 1853 as a result of massacres. In Tasmania, a desire to grow sheep production resulted in a nearly complete elimination of the isolated Tasmanian Aborigines, who had regressed to a level of stone tool technology more characteristic of the early Paleolithic than even their neighbors on the Australian mainland.

Despite massacres and hunting of Aborigines throughout the rest of the 19th century by settlers, British humanitarianism ultimately prevented a wholesale elimination of Aborigines. Instead, Aborigines were exhorted to adopt a European way of life or lived in remote isolation in the Australian outback. The remoteness of much of Australia likely saved the lives of some Aborigines. Indeed, small bands of Aborigines living an essentially Paleolithic lifestyle continued to emerge from the desert until as late as 1984.

Aborigines retained land and water rights during the process of British settlement, although these claims often existed in a legal gray area. The Australian Constitution of 1901 did little to resolve uncertainty. The Yolngu people in the Northern Territory challenged a federal government bauxite mining agreement with the mining company Nabalco, in 1968, on the grounds that they held title to part of the Gove Peninsula. Because of a lack of documentation, the court looked to examples from other British settler societies, holding that no doctrine of communal native title existed in other systems.

The Gove Land Rights case prompted the Australian Parliament to adopt the Aboriginal Land Rights Act of 1976. The law gave Aborigines a powerful veto on mine development and freehold title in almost 50 percent of the Northern Territory. Eddie Mabo, a Torres Strait Islander, filed suit in 1982 for native title to the Murray Islands—a subpart of the Torres Strait Islands. Rejecting past “discriminatory doctrine,” the Australian High Court relied on international law rather than common law to determine that common law rights of indigenous title exist. Parliament provided a statutory answer to the question with the Native Title Act of 1993, formally recognizing common law rights of indigenous title.

The High Court developed a test for native title: (1) native laws and customs that can be translated into land rights, and (2) a connection to land and water rights claimed through laws and customs. Because most Aboriginal laws and customs are unwritten, the High Court called for physical evidence and continual existence from before British colonization. In parallel with recognition of native title, most Australian states have restored traditional fishing rights. Western Australia and Victoria both recognize customary fishing permits for Aborigines, whereas the Northern Territory exempts Aborigines from fishing regulations when fishing takes place on land or water subject to native title.

Even with growing recognition of native title, Australia lacks a government-to-government relationship with Aborigine groups. A few Aboriginal groups, principally the Ngarrindjeri Nation and the Gunditjmara people go through the motions of self-government, with deliberative democracy and relationships with state and local government. The states of South Australia and Victoria have both entered preliminary treaty negotiations with Aborigine governments, based up on South Australia’s experience creating the Ngarrindjeri and Narungga Regional Authorities. Thus, Australia has forms of indigenous land rights, but nothing like the kinds of indigenous self-government found to different degrees in the U.S. and Canada.

D. New Zealand

New Zealand is a country with an English-derived common law legal system, where the 1840 English-Maori Treaty of Waitangi serves as the foundational constitutional document. New Zealand’s genesis is unusual, because early British settlers encountered Maori Polynesian tribes with a high-level of organization, firearms, and exposure to Old World diseases who proved much more robust in the face of European settlement than Indians in the North America or Aborigines in Australia. War broke out between the British and Maori in 1860, engulfing the North Island in conflict. Under the New Zealand Settlements Act of 1863, four million acres of land were expropriated from areas deemed to have been in rebellion, from rebels and loyalists alike.

Prompted by the war and declining Maori land transfers in the 1850s, the British government created the Native Land Court in 1864. Hearings occurred far from where the land was situated and Maori individuals often incurred high costs having land surveyed or traveling to hearings. Decisions typically resulted in land transfer and sale. Maori groups banded together forming the informal Maori Parliament that existed between 1892 and 1902. British legislators refused to recognize the Maori Parliament and even filed out of hearings to avoid a quorum to vote on a proposed Native Rights Bill. In an earlier effort to defuse the tensions that resulted in the Maori Wars of the 1860s, the General Assembly had granted four—later 15 seats—to Maori voters. As a result, Maori legislators in that forum were able to introduce bills but lacked the political strength to pass them, especially as universal male suffrage for more numerous British New Zealanders came into effect after 1879.

British settlement resulted in dramatic demographic changes for Maori people. Between contact and the 1890s, life expectancy dropped from 30 to as little as 23 years, and the population fell from an estimated total of 100,000 in 1769 to about approximately 42,000. If taken as accurate, these numbers indicate a nearly 60 percent drop in population—a tremendously high toll, except in comparison with the 90 percent or more population drop among indigenous people in North America and presumptively Australia.

Maori land holdings dropped precipitously throughout the early 20th century, falling to just one-third of 1910 levels in 1930, or nine percent of the North Island. Beginning in 1910, Maori incorporations formed as a means of collective ownership to continue control of traditional lands. Owners amassed individual title under a committee of management, leveraging common law-derived trust law to maintain communal land ownership.

Poor economic conditions in the countryside prompted large numbers of Maoris to leave rural areas for the cities, where they faced racial discrimination in housing and public accommodations. Parliament adopted the Maori Affairs Act of 1953, which granted official status to the Maori language, but simultaneously supported assimilation for Maoris and promoted continued land transfers—dropping land holdings in the North Island to a mere four percent of all land. As indigenous rights became more favored after the 1960s, Parliament in 1975 passed the Treaty of Waitangi Act, creating a Waitangi Tribunal to investigate Maori claims. The Te Ture Whenua Maori Act 1993 redefined Maori landownership. The Act subdivides Maori land into three categories: (1) freehold land, that with rare exceptions has never been out of Maori ownership, (2) customary land, held under customary ownership, and (3) general land, reclassified as Maori by five owners who choose to reclassify it through the Maori Land Court. A total of 129 Maori incorporations and 20,000 trusts hold 64 percent of these lands. In stark contrast to the history of the Native Land Court, land transfer out of Maori ownership requires approval of 75 percent of registered owners and the Maori Land Court. Therefore, most land is used commercially or residentially through leases. The Land Court wields considerable power and can in rare circumstances remove incorporation trustees. Although the Land Court has created online land information sharing in the 2000s, access to information about Maori lands can be limited. Access to credit is challenging for Maori lands because of multiple owners and a complex land ownership system that limits alienation to Maoris.

In the 2020s, Maori land comprises 5.6 percent of New Zealand’s land area. Compared with general land holdings, these lands are more likely to be landlocked parcels, swampy, or usable only for forestry. Today, Maori people in New Zealand have many civil society organizations and what amounts to partial recognition by the government, but do not have self-government per se or a separate Maori Parliament, as advocated by some activists. Despite many setbacks since the mid-19th century, Maori New Zealanders were able to retain some lands until eventual recognition of indigenous rights by using British-style trust and property law to combat state action against them.

II. COMPARING LEGAL RESPONSES

The U.S., Canada, Australia, and New Zealand share similar legal and cultural origins. All four are settler states that displaced indigenous people without fully extirpating those communities. The four countries have chosen to handle indigenous land rights in different ways based upon different path dependencies. During a first phase of settlement and nation-building beginning in the 1600s in North America, the 1780s in Australia, and the 1840s in New Zealand, all four countries attempted to absorb indigenous people between initial settlement and the mid-20th century. Only in the 1960s did the political winds began to change affirmatively in favor of indigenous rights and a new recognition of property rights.

Perhaps the most notable difference between North America and Oceania is the presence of reservations in both the U.S. and Canada. Reservations began as preserved lands or substitute lands for tribes that yielded more valuable tracts of land to settlers. Indeed, reservations offer territory to domestic dependent nations, explicitly recognized in the U.S. Constitution and case law, and less formally recognized in Canada. Over time, reservations—especially in lightly settled frontier areas—became assembly points to control Indians, distribute services, or conduct assimilation programs.

The precise reasons for different outcomes require historical analysis beyond the scope of this paper. Preliminarily, the U.S. and Canada were forced to deal with Indians as nations, prompting the creation of treaties and reservations. Among the four settler societies, the U.S. has both the largest overall population and perhaps the most evenly distributed population apart from New Zealand. As a result, the U.S. faced early pressure from state governments to remove Indians to less desirable land and heightened pressure to assimilate Indians. Yet it also developed one of the most comprehensive reservation systems apart from Canada. By contrast, Aborigines were so few in number and remotely situated that Australia never developed the same form of reservation system. Similarly, New Zealand marginalized Maoris but did not adopt a formal reservation system. Moreover, in the New Zealand example, Maoris had more recently arrived from the Old World and therefore did not die off at the same rate due to European diseases, forcing British New Zealanders to deal with Maoris as something like a peer group. Australia reached some of the greatest heights of massacres and extirpation, but also allowed many Aborigines to remain in a legal twilight in remote parts of the continent. It never went through the same process of creating reserves or treaties and only in recent decades has begun to offer retroactive land claims.

The revival of indigenous land rights after the 1960s is likely the result of several factors: (1) the discrediting of racism in World War II, (2) the American civil rights movement and equivalent movements, and (3) a desire to clean up poverty and racial strife to appeal to newly independent developing countries. These factors played out almost simultaneously in all four countries between the 1960s and the 1990s. In the U.S., Congress initiated this process in 1968 with courts following suit through significant decisions like the Boldt case and Morton v. Mancari throughout the 1970s. Although anti-racism and civil rights was probably the main factor, all four countries experienced a revival of interest in decentralization during this period of time, which may have prompted policymakers to improve decentralization for indigenous people.

Perhaps because of its federal traditions and regionally concentrated Indian population, the U.S. was the first of the four countries to embrace indigenous self-government and to create special jurisdictional privileges, allowing Indian gaming and tribal courts. Canada, by contrast, was slow to allow indigenous self-government until its halting initiative to permit negotiated self-government after 1995 for Indian bands that chose to opt out of the limitations of the Indian Act. Yet, the remoteness of parts of Canada promoted perhaps the most dramatic concession to indigenous land rights and self-government anywhere in the world: the creation of Nunavut in 1999 and other authorities like Nunatsiavut in northern Labrador.

Compared with the other three countries, the U.S. has gone the furthest in considering special indigenous jurisdiction (apart from the notable exceptions in northern Canada). Indians have separate court systems with criminal and civil jurisdiction—criminal jurisdiction that has expanded, rather than shrunk in the 21st century—affirmed by startling decisions like McGirt.

Perhaps as a result of the lack of formal self-government, neither Australia nor New Zealand has adopted special jurisdictional or gaming privileges for their indigenous inhabitants. But as a part of the indigenous land rights revolution, both countries have expanded indigenous land rights and hunting rights along similar lines to the U.S. and Canada. All four countries should undertake a systematic analysis of indigenous land rights, creating better streamlining through statute to preserve indigenous rights for the future in a fashion that promotes economic development, individual, and collective sovereignty.

CONCLUSION

Indigenous land claims and questions of status and self-government that attach to them are far from settled. All four major Anglosphere countries emerged as settler societies, expanding rapidly through high growth rate settler colonialism and land speculation. Through this process, indigenous people in each country lost out to varying degrees. In the U.S. and Canada, settlers dealt with indigenous people as nations, engaging in forced removals but also brokering treaties, and laying the groundwork for the restoration of tribal jurisdiction in the late 20th century. Australia virtually wiped out Aborigines and never negotiated with Aborigines as nations, yet preserved a modicum of rights that it restored in the area of land and fishing through court decisions and acts of Parliament after 1968. New Zealand’s indigenous people did not die off at the same rate as indigenous people elsewhere, countering settler power through clever political organization and use of land law, until the promise of the Treaty of Waitangi was restored in the 1980s. Indigenous land rights remain in flux in all four countries—an unresolved area for policymakers to revisit.