§3.

3 NONWHITE NATIVES IN OTHER LANDS

Racism is not a uniquely American practice. In 1994, South Africa’s peoples ended

generations of apartheid aimed at complete physical and political separation of racial

groups. Great Britain’s history of imperialism included intense involvement in the slave

trade and the creation of segregated colonial societies. In England, patterns of racism

against nonwhites were visible in restrictive immigration laws and discrimination in

housing and employment, not dissimilar to those found in urban America.

Another example is the half-century of conflict between Israelis and Palestinians, who

believe that the land of Israel belongs to them and who claim the “right to return,” based

on their residence in British Mandatory Palestine prior to the establishment of the State of

Israel. This is the cornerstone of the Palestinian struggle against Israel. By contrast,

Zionism, the modern movement for the return of Jews to their ancient homeland, views a

Palestinian right to return as antithetical to the Jews’ special, even God-given, historical

and religious relationship with the land of Israel. Many argue that the return of

Palestinians to Israel poses direct ideological and existential threats to the Israeli State.

Israel has dominated the region by its superior arms and, in the process, views the

Palestinians as a conquered people on whom it has imposed military rule. By denying the

Palestinians basic rights and subjecting them to impoverished living conditions, the

Israeli position has sparked revolts such as the Intifada and terrorist attacks. 1 The

1
For scholarly works supporting the Palestinian position, see, Edward W. Said, Peace and Its Discontents:
Essays on Palestine in the Middle East Peace Process (1995); Edward W. Said, The Politics of
Dispossession: The Struggle for Palestinian Self Determination, 1969-1994 (1994); Noam Chomsky &
Edward W. Said, The Fateful Triangle: The United States, Israel, and the Palestinians (1999). For a quick
overview that provides a good background on the controversy, see Ron Davis, Arabs and Israel for
Beginners (1993). Also see Justus Weiner, The Palestinian Refugees’ “Right to Return” and the Peace
Process, 20 B.C. Int’l & Comp. L. Rev. 1, 1-2 (1997). For more discussion, see Ved Nanda, et al., Self-
following discussion, to create a context for a deeper understanding of the plight of

Native Americans when overwhelmed by European invaders, sets out a brief description

of the experiences of the natives of Australia and of New Zealand under similar pressures.

Both summaries were researched and drafted by Rebecca Kavanagh.2

§3.3.1 Aboriginal Australians

Roberta Sykes is one of Australia’s foremost black activists. 3 She is a world-

renowned poet and writer and was the first black Australian to be awarded a doctoral

degree from Harvard University. Yet, in her seminal text, Black Majority: An Analysis of

Twenty-one Years of Black Australian Experience as Emancipated Australian Citizens,

Dr. Sykes recounts being led off a plane in Europe because the authorities suspected she

was an Ethiopian terrorist.4 Why had she aroused suspicion? Because she is black and

was traveling on an Australian passport.

When Ralph Ellison wrote The Invisible Man in 1952, he could have been describing

the Aboriginal experience in Australia as easily as the African American experience in

the United States. Indeed, some 50 years after it was written, this trope of invisibility

resonates strongly in the experiences of modern-day Aboriginal Australians. Few non-

Australians are aware that Australia has a significant black population. Even those who

are aware would probably not find Dr. Sykes’s story surprising, since their impression of

Determination: The Case of Palestine, 82 Am. Soc’y Int’l L. Proc. 334 (1988); Burns Weston, et al.,
International Law and Solutions to the Arab-Israeli Conflict, 83 Am. Soc’y Int’l L. Proc. 121 (1989).
2
B.A. (First Class Honors) University of Sydney 1994; LL.B. (First Class Honors) University of Sydney
1996; Awarded Lionel Murphy Overseas Postgraduate Scholarship 1997; LL.M. New York University
1998. Currently JSD Candidate (2004) NYU.
3
Aboriginal Australians are black and identify as such, so these terms are used interchangeably throughout
this section. This identification is not questioned in Australia and elsewhere outside the United States, but it
seems to confuse some Americans because Aboriginal Australians are not of African descent.
4
Roberta Sykes, Black Majority: An Analysis of Twenty-One Years of Black Australian Experience as
Emancipated Australian Citizens (1989).
Aboriginal Australians is that they are a tribal people who live in the outback, and they

certainly do not travel across the European continent. Indeed, the problem of invisibility

is a defining element of the black experience in Australia — and it is not just about

perceptions overseas. Few white Australians have meaningful contact with black

Australians, and many hold the same misconceptions as do non-Australians. Like non-

Australians, white Australians’ contact with Aboriginality is often limited to movies like

Crocodile Dundee and to documentaries on the Discovery Channel.

But while Aboriginal Australians themselves are largely invisible on the world stage,

Aboriginal culture (or at least the white co-opted version of it) is everywhere. Aboriginal

art adorns Qantas planes; Aboriginal dance featured prominently in the opening

ceremony for the Sydney 2000 Olympic games and more recently as part of the 2003

Rugby World Cup opening spectacular; Aboriginality has become Australia’s “cultural

mascot” replacing the koala and kangaroo. This use (or, rather, misuse) of Aboriginal

culture is not unintentional. Indeed, it is part of a very deliberate (and clever) attempt by

the Australian government to control what the world sees of the black experience in

Australia. Writing in the lead-up to the Sydney 2000 Olympic games, ex-patriot journalist,

John Pilger, described this phenomenon in the Guardian.

In Monaco, when the IOC met to decide on the winning city, Australia was presented

as an oasis of human harmony, in marked contrast to China, its main rival for the games.

Delegates were treated to street performances by Aboriginal dancers and didgeridoo-

players in full body paint, together with cavorting giant kangaroos and wombats. Of

course, white Australia has long appropriated the art and artifacts of the Aboriginal

Dreaming. It was no surprise that the boomerang was adopted as the motif for the Sydney
Games. Two Qantas aircraft have been repainted in indigenous designs, and there is an

“indigenous advisory committee,” headed by the affable former rugby star, Gary Ella,

himself an Aborigine. When foreign VIPs arrive next year, they will be met by

Aboriginal elders: “official greeters.” And when the Olympic torch is first carried on

Australian soil by Nova Peris-Kneebone, winner of the 200m at the 1998 Commonwealth

Games, all those revelations of kickbacks, junkets, and gifts of a $10,000 necklaces will

be subsumed in the glow of an opening ceremony devoted to “mutual respect and

reconciliation.”5

Pilger’s analysis proved prescient. Black activists had long planned, and did manage

to some degree, to use the games to draw international media attention to the plight of

their people. But the carefully orchestrated government counterstrategy ensured that,

when issues such as the stolen generations (discussed below) were covered in the

international media, Australia was more often presented as a nation grappling with its

past maltreatment of its Native people rather than as one dealing with the present-day

consequences of that maltreatment.

The media darling of the games was Cathy Freeman, the Aboriginal Australian runner

who lit the Olympic torch during the opening ceremony and who was later victorious in

the 400 meter sprint. Of the 400 meter dash, Time magazine commented, “not since

African American Jesse Owens ran upside Hitler at the 1936 Olympics in Berlin has a

footrace been freighted with so much extra-athletic significance.”6 Indeed, anyone who

watched the race can attest to the enormous outpouring of emotion from the crowd,

5
John Pilger, “Fixed Race,” The Guardian, Aug. 21, 1999.
6
For Her People, Time Magazine: The Year in Pictures, Dec. 2000.
whose chants of “Cathy” reached fever pitch in the last hundred meters. Clearly

something about this slight, elegant, and gracious young woman touched the soul of

white Australia in a way that even they did not understand. Freeman completed her

victory lap of the arena carrying both the Australian and Aboriginal flags. (A few years

earlier, her decision to carry only the Aboriginal flag at the Commonwealth Games had

sparked a national controversy.) In a phenomenon not dissimilar from the way in which

African American athletes such as Michael Jordan become national heroes (almost,

though not completely, transcending their race — witness O. J. Simpson) so too Cathy

Freeman became the quintessential Australian heroine of the new millennium. And while

most white Australians chose to bask in the glory of her victory against insurmountable

odds, perhaps reassuring themselves that all was right in the new Australia, at least one

Australian — Prime Minister John Howard — chose not to participate. When asked if he

was proud of Freeman’s win, Howard replied that he was proud of all the Australian

athletes competing in the games. He had shown no such reserve when praising white

Australian swimmer Ian Thorpe’s victory a few days prior.

Putting aside all of the hoopla surrounding Cathy Freeman’s victory, however, just

what is the reality of the black experience in Australia?

The Australian continent has a human history of between 50,000 and 150,000 years,

making Aboriginal Australians representatives of the oldest surviving cultures in the

world. At the time of the European invasion in 1788, there were more than two hundred

Aboriginal tribes, each with a distinct culture and language, and the total Aboriginal

population was probably more than one million. Despite this, and in contrast to other

British colonies, such as New Zealand, the British acquired sovereignty over the
Australian continent based on the lie that it was uninhabited — “terra nullius” or

nobody’s land — and no treaty was ever negotiated with the Aboriginal peoples. By the

early twentieth century, the Aboriginal population had declined to fewer than twenty

thousand due to the efforts of the white invaders to rid themselves of what they termed

the “Aboriginal problem.” Today, according to the 2001 census, Aboriginal people

comprise 2.4 percent of Australia’s population, or close to 500,000 people in a total

population of 20 million, with the highest concentration of Aborigines choosing to live in

Australia’s largest city, Sydney.7 The real figure is undoubtedly much higher — probably

closer to 5 percent — due to historical undercounting. In recent years, there has been a

massive national indigenous population surge. Indeed, in the last decade alone, the

national Aboriginal population increased 55 percent. 8 Historically and to this day,

Aboriginal people have lived on mainland Australia, Tasmania, and many of the

continent’s offshore islands; however, in all but the most remote areas of Australia,

Aboriginal people have over the past two hundred years been dispossessed of their

traditional lands. Today, more than three-quarters of black Australians live in urban areas,

and, of those who live in rural areas, only a small number live in remote traditional

communities.9 Still, the idea of the tribal Aborigine is the image paraded to the world

(and to white Australia) in countless documentaries and news stories.

Good reason exists, of course, for why the plight of Aboriginal Australians living in

remote communities should garner international media attention — many communities

7
Phil Mercer, Australia’s new “black pride,” July 4, 2002, available at http://news. bbc.co.uk/2/hi/asia-
pacific/2093097.stm.
8
Debra Jopsen, “White as a Ghost” But One of a Growing Aboriginal Nation, Sydney Morning Herald,
June 18, 2002. A significant part of this increase can be attributed to people raised without awareness of
their Aboriginal heritage reclaiming their black identity and roots.
9
Australian Bureau of Statistics, Population Distribution: Indigenous Australians (1997).
have Third-World living conditions, lacking access to clean water or sanitation — but,

sadly, the real needs of these communities are seldom part of the spin put on stories about

the experience of Aboriginal Australians living in the outback.

One of the most shocking examples of institutional discrimination and racism in the

provision of basic services to indigenous Australians was documented in a report by the

Human Rights and Equal Opportunity Commission, a federal government agency, on the

living conditions of a remote Aboriginal community in an area known as Toomelah. The

report found that the Aboriginal people in Toomelah lived without access to clean water;

that the communities had hopelessly inadequate sewage systems; and that housing, often

in the form of tin sheds more reminiscent of something one might find in a South African

township than in a wealthy nation such as Australia, was dilapidated. The problem,

according to the report, was not the remoteness of the community; it noted that a nearby

white community had access to all these amenities. The report was so shocking that it

received saturation media coverage, but some ten years later, a television crew visiting

Toomelah found that little had changed.10 The state of Aboriginal health is, or should be,

a matter of national shame. Many Aboriginal people die of diseases otherwise eradicated

in Australia, such as tuberculosis. The Aboriginal infant mortality rate is five times that

of white Australians, and Aboriginal people have a life expectancy some 20 years less

than other Australians.11 Perhaps surprisingly, these appalling statistics apply not only to

black Australians living in remote communities but to all black Australians, most of

whom, of course, live in urban areas. The problem, then, is not access to resources but the

10
Human Rights and Equal Opportunity Commission, Report on the Problems and Needs of Aborigines
Living on the NSW-Queensland Border (Toomelah Report), 1988.
11
Heather McRae, Garth Nettheim, & Laura Beacroft, Indigenous Legal Issues 10ff. (1997).
decades of neglect and the entrenched racism that is as much a part of Australian society

as it is of society in the United States.

The interplay of race and racism in Australia in many ways echoes the American

experience, with, of course, vitally important differences. The same stereotypes that

George Frederickson identifies in The Black Image in the White Mind (which examines

racist attitudes in nineteenth-century America) were — and are — very much a part of

Australia’s culture of racism. The idea that black Australians are uncivilized savages

draws on constructs similar to those that shaped the treatment of blacks in the United

States. In 1844, for instance, W. C. Wentworth, speaking on the Aborigines Evidence Bill,

which would have allowed Aborigines to testify in courts of law, claimed that it would

“be quite as defensible to receive evidence in a court of justice the chatterings of the

ourang-outang as of this savage race.”12 Henry Reynolds writes,

Many early settlers probably arrived in Australia with, or soon acquired, a view of

savagery compounded of godless anarchy, violence, cannibalism and sexual depravity. . . .

Thus ideas from many sources — scientific and popular, old and new — fostered the

growth of racial prejudice in the Australian colonies. Such attitudes influenced the course

of race relations, encouraging and ultimately sanctioning the use of violence and vitiating

the officially favored policy of assimilating the indigenes into white society.13

Many scholars draw links between this racist ideology and the horrific violence that

has been inflicted upon black Australians in the eighteenth, nineteenth and, indeed,

twentieth centuries. Reverend William Yate, for instance, declared in 1830, “They were

12
Cited in Henry Reynolds, Racial Thought in Early Colonial Australia 45-53 (1974).
13
Id.
nothing better than dogs, and . . . it was no more harm to shoot them than it would be to

shoot a dog when he barked at you.”14 As in the United States, the idea of the black man

as a sexual predator and threat to white women was a central part of this mythology and

led to many lynchings in late nineteenth- and early twentieth-century Australia. (In fact,

John Pilger claims that “nigger hunts” continued well into the 1960s.15) This appalling

history of lynchings, massacres, and other violence toward Aboriginal Australians is well

documented. 16 Despite this, a recent book by a previously little-known right wing

academic, Keith Windschuttle, The Fabrication of Aboriginal History (2002), claims that

orthodox historians had deliberately fabricated or exaggerated evidence of massacres and

ill treatment of Aborigines by the early colonialists in order to assuage “white guilt for

genocide.” He focuses in particular on the destruction of the Aboriginal population of

Tasmania, off the southeast coast of mainland Australia: The island’s Native population

was virtually wiped out in the early days of British colonial rule. Windschuttle dismisses

as ideologically motivated the accepted estimates of the number of Aborigines killed by

settlers. For instance, he categorizes the bitter clashes between settlers and Aborigines in

the 1830s known as the “Black war” as “an outbreak of robbery, assault and murder by

tribal Aborigines.” Employing the narrowest standards possible, he also accepts as

evidence of deliberate killings only those cases that were publicly reported or recorded.

In doing so, as one critic, Dirk Moses (see below) points out, he uses the same standards

of evidence as Holocaust deniers such as David Irving who argue that “because there are

no direct surviving eyewitnesses of gas chambers . . . therefore they did not exist or we

14
Cited in Bruce Elder, Blood on the Wattle: Massacres and Maltreatment of Australian Aborigines since
1788 1 (2003).
15
John Pilger, Australia Is the Only Developed Country Whose Government Has Been Condemned as
Racist by the United Nations, Oct. 13, 2000, available at http://pilger.carlton.com/ print/30056.
16
Id. See also Elder, supra note 14.
cannot prove they exist.” Ordinarily this sort of ideological drivel would be dismissed as

the ranting of the lunatic fringe, but Windschuttle’s work was praised by the Australian

prime minister — who has used it to refute what he has termed the “black armband” view

of Australian history — and received widespread coverage in Australian newspapers

owned by Rupert Murdoch’s News Limited. Windschuttle declares in the introduction to

his book that what is at stake is “our understanding of the character of our nation and of

the caliber of the British civilization we brought here in 1788,” and as such, his book fans

the flames of the “culture wars” set in motion with the 1996 election of the current

Australian prime minister, John Howard. A new collection of essays by some of the most

esteemed historians of Australian history (edited by Robert Manne and including a

contribution from Dirk Moses), Whitewash: On Keith Windschuttle’s Fabrication of

Aboriginal History (2003), comprehensively tears apart his analysis. But Windschuttle’s

book has already done tremendous damage to the reconciliation movement.

As in the United States, white Australians are profoundly ignorant of both the

modern-day and historical black experience. One could argue that such ignorance is a

matter of choice. While few white Australians have meaningful contact with black

Australians, the media, at least in Australia, does cover issues pertaining to Aboriginal

Australia. Few Australians could feign ignorance, for instance, of the substandard living

conditions of many Aboriginal people. The Toomelah report, for example, received

saturated media coverage. Similarly, the University of Sydney, Australia’s oldest and

most prestigious university, is located in the heart of Redfern, an inner-city neighborhood

of Sydney with a majority black population. Each and every day, thousands of the

children of the power elite make the 15-minute walk from Redfern Station to the
university through streets lined with what can be described only as slum housing. Most

choose to look away. Interestingly, Redfern is prime Sydney real estate, located just five

minutes from the city center. The state government, keenly aware of this, has offered to

buy up the land and relocate the families to other Sydney neighborhoods. While this

proposal is attractive to some Aboriginal people living in Redfern who no doubt would

like their families to grow up in more salubrious surroundings, it also threatens to scatter

Redfern’s black population all over Sydney, thereby breaking up the one majority black

neighborhood in the city.

Just as white America refuses to understand the modern-day consequences of slavery,

many white Australians see the invasion of Australia two hundred years ago, and the

consequent dispossession of Aboriginal people from their land, as an historical event of

limited relevance to an understanding of the experience of black Australians today. Since

the invasion of the Australian continent, black Australians have been subject to

government policies that attempted variously to kill off, displace, convert, isolate, or

assimilate them. It was not until 1967 that black Australians were recognized as fully-

fledged Australian citizens, and many nefarious government policies continued well into

the 1970s. In a report by the Australian Human Rights and Equal Opportunity

Commission, Australian government policies towards Aborigines were labeled

“genocide.” 17 Dr. Rosalind Kidd, who has extensively researched the policies and

practices of the administration of the state of Queensland, concludes from her work that,

for all of this century, “Aborigines have been the most intensively supervised sector of

the population, and if we are to understand why present social indicators for Aborigines

17
Human Rights and Equal Opportunity Commission, Bringing Them Home: A Guide to the Findings and
Recommendations of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander
Children from Their Families (1997).
— health, education, employment, family cohesion — are so appallingly deficient, we

must investigate how the machinery of government has created these circumstances.”18

After the white invasion in 1788, an extremely large number of indigenous Australians

died, whether as the result of massacres by white Australians or as the result of

introduced diseases or government neglect. The remnants of the black population were

rounded up by the white authorities and moved away to reserves or missions where they

were forbidden to speak their languages or practice their culture. Aboriginal people were

used as a source of cheap labor for farmers, and Aboriginal women were often employed

as domestics.

The Australian states had a myriad of laws that prevented black Australians from

entering hotels, marrying without permission, and living within town boundaries. Those

Aborigines who were allowed to leave the missions were issued with papers known

colloquially as “dog tags.” One such law was the Native Administration Act enacted in

Western Australia in 1936. This blatantly racist law provided, among other things, that:

(a) No native, except adult half-caste males who do not live as Aborigines, can move

from one place to another without the permission of a protector and the giving of sureties;

(b) No native parent or other relative living has the guardianship of an Aboriginal or half-

caste child; (c) Natives may be ordered into reserves or institutions and confined there;

(d) The property of all minors is automatically managed by the Chief Protector, while the

management of the property of any native may be taken over by consent or if considered

necessary to do so to provide for its due preservation; (e) Natives may be ordered out of

18
Rosalyn Kidd, cited in Aboriginal and Torres Strait Islander Commission, As a Matter of Fact:
Answering the Myths and Misconceptions about Indigenous Australians 11 (1998).
town or from prohibited areas; and (f) Subject to the right of appeal, the Commissioner of

Native Affairs may object to the marriage of any native.

Many historians have compared these laws to the apartheid regime as it existed in

South Africa. The last of the laws listed above was not repealed until the 1970s.

Antimiscegenation laws existed as well, though the rate of intermarriage and (consensual)

sexual relations between black and white Australians has always been much higher than

in the United States; currently almost fifty percent of black Australians marry outside

their race.

The idea of invisibility was central to these government policies. The official

government policy was to assimilate the black population into the wider community. The

belief was that this would mean that the Aboriginal “problem” would eventually

disappear, as black Australians lost their identity within the wider community. In 1947, A.

O. Neville, a Western Australian Commissioner of Native Affairs, claimed that he had a

“scientific solution” to the “Aboriginal problem.” He argued that research showed that

skin pigmentation could be bred out of Aborigines in two or three generations, and, if he

were given the money to start a selective breeding program, he declared that he would

solve the Aboriginal problem by breeding a race of white Aborigines.19 The scariest thing

about this proposal is that it was not seen as outlandish or bizarre by the powers that be at

the time: After all, it was really just an extension of what they were already doing.

Though the official aim of government policy was assimilation, no one suggested that

Aboriginal Australians should have equal citizenship rights, and they remained subject to

strict government supervision. The most devastating part of the policy of assimilation

19
See further Elder, supra note 14, at 179.
was the forced removal of Aboriginal children from their families. These children,

fostered out to white families or raised in institutions, are known as the “stolen

generations,” and the practice, begun in the earliest days of the British occupation,

continued until the 1970s. At its peak from 1910 to 1970, between one in three and one in

ten black children were removed from their families and communities.20 While racism is

no longer officially sanctioned in Australian law, it continues to have a destructive effect

on the lives of black Australians and to manifest in their contacts with the legal system

and government. The welfare system continues to remove Aboriginal children from their

families at a rate far higher than white children are removed from theirs. Aboriginal

people make up almost 20 percent of the Australian prison population (a rate of

imprisonment higher than that of any other people in the world, including blacks in the

United States and apartheid-era South Africa). The rate of imprisonment among

Aboriginal women is even higher — some 32 percent of women in prison nationally are

Aboriginal. In Western Australia, the rate is higher still — there, one-half of the female

prison population is black, and in the Northern Territory, the figure is two-thirds.21

The number of black deaths in custody is so alarming that the government instituted a

Royal Commission to examine the problem. Some 15 years after that commission

released its recommendations, little if anything has changed, and, in fact, Aboriginal

deaths in custody continue at a rate higher than during the period that was examined by

the commission. Police brutality toward Aborigines is a huge problem in inner-city and

20
See Human Rights and Equal Opportunity Commission, Bringing Them Home, supra note 17. This
policy is the subject of the critically acclaimed film by director Philip Noyce, Rabbit Proof Fence, about
three Aboriginal children who escaped from the reserve, where they were placed after having been stolen
from their families. The children found their way home by following the so-called rabbit proof fence that
runs the length of the Australian continent.
21
Australian Institute of Criminology Study, cited in Aboriginal Justice Advisory Council, News, Mar.
2001.
rural areas. While Australia has no equivalent to the harsh drug laws that impact so

greatly on black communities in the United States, black Australians are subject to a far

higher rate of arrest than are other Australians for all crimes. They are also far more

likely to be arrested for minor offenses, such as resisting arrest and disorderly conduct,

than are white Australians.

Few white Australians have any understanding of the impact of racism on the

everyday lives of black Australians. As Elliot Johnston, who oversaw part of the Royal

Commission into Aboriginal Deaths in Custody, has commented,

Until I examined the files of the people who died and other material which has come

before the commission and listened to Aboriginal people speaking, I had no conception of

the degree of pinpricking domination, abuse of personal power, utter paternalism, open

contempt and total indifference with which so many Aboriginal people were visited on a

day to day basis.22

Regrettably, this is a sentiment understood and shared by a seeming minority of white

Australians. Although an increasing number of Australians seem to recognize the

devastation that official government policies have wrought upon black Australia (there

have been huge marches in support of reconciliation), a larger number seem to subscribe

to the sentiments held by the current Australian prime minister, John Howard, who has

rejected what he terms the “black armband” view of Australian history. Whereas the

former Labor party prime minister, Paul Keating, argued that white Australians needed to

accept their culpability for the devastation wrought on Australia’s indigenous people, the

current prime minister would absolve white Australia of all responsibility, instead

22
Elliot Johnson, Report of the Royal Commission into Aboriginal Deaths in Custody (1991).
proclaiming that the country has a proud history. The contrast between the two leaders

could not be more complete. In a famous speech in 1992, launching the Council for

Aboriginal Reconciliation, the then prime minister Keating passionately argued that

reconciliation, begins, I think, with the act of recognition. Recognition that it was we who

did the dispossessing. We took the traditional lands and smashed the traditional way of

life. We brought the disasters. The alcohol. We committed the murders. We took the

children from their mothers. We practiced discrimination and exclusion. It was our

ignorance and our prejudice. And our failure to imagine these things being done to us.

With some noble exceptions, we failed to make the most basic human response and enter

into their hearts and minds. We failed to ask — how would I feel if this were done to me?

As a consequence, we failed to see that what we were doing degraded all of us.23

By contrast the current prime minister was dragged kicking and screaming into

making what was termed “an historic statement of regret” to the Australian parliament in

1999 for Australia’s past treatment of its Aboriginal peoples. The power of the resolution

was diluted because the prime minister made clear that this was not an apology and that it

would entail no compensation. Some victims of the most terrible government policies —

such as those who were removed from their natural families as children — have brought

cases before the courts at a state and federal level. So far these claims have not been

successful, but hope persists in some quarters that eventually Aboriginal people will get

legal redress.

Thus far, at least, the judiciary has had a better record than the legislature at

upholding Aboriginal rights, but, considering how little the Australian parliament has

23
Paul Keating, Dec. 10, 1992, available at http://apology.west.net.au/redfern.html.
done, that is not really saying a lot. In 1992, in the Mabo decision, the High Court for the

first time recognized that in certain circumstances where Aborigines could demonstrate a

“continuous connection” to a piece of land they could then assert native title to that

land.24 The case was considered a landmark because it overturned the doctrine of “terra

nullius,” but its practical effect was limited because of the stringent test the court

established as necessary to prove a “continuous connection” to a piece of land. So while

the decision was widely praised, for the vast majority of Aboriginal Australians, who had

long been dispossessed of their land, including the more than 80 percent who live in

urban areas, it had, at most, symbolic significance. A later decision in the Wik case

generated more controversy.25 In that case, the court extended its earlier ruling and held

that native title was not extinguished by pastoral leases, a decision that caused a furor

among the landed aristocracy and that resulted in government legislation that effectively

overruled the decision.

This legislation prompted a group of black Australians to bring a claim before the

United Nations, arguing that Australia was in violation of the United Nations Convention

against Racial Discrimination. In a controversial decision, the United Nations Committee

on the Elimination of Racial Discrimination found that Australia was indeed in violation

of the convention — the first western nation ever to be found in violation — and asked

the government to “please explain” its conduct; the Australian government has refused to

consider this invitation. In a reaction not unlike that of many white South Africans when

the international community imposed economic sanctions in their country, many white

Australians expressed resentment at the United Nations’ intervention in their “domestic

24
Mabo v. Queensland (No 2), 175 C.L.R. 1 (1992).
25
Wik Peoples v. Queensland, 134 A.L.R. 637 (1996).
affairs.” Many white Australians, who have little if any contact with black Australians,

are appallingly ignorant of the condition of blacks in Australia, and myths about black

identity, in particular, abound. Because of the systematic rape of black Australian women

by white men, for instance, as well as the official government policy of assimilation and

the high rate of intermarriage between black and white Australians, many Aborigines,

particularly those who live in urban centers, are of light complexion. Many white

Australians believe that these Aborigines are not really “black” and that they claim to be

Aboriginal only to gain special privileges. Historically, the federal and state governments

have used definitions of Aboriginality based on percentages of blood, producing results

that were both brutal and inconsistent. Child removal policies often targeted children with

lighter skin, as they were thought to be more “assimilable.” In contrast to the United

States, however, and in parallel with South Africa, a person of some black heritage was

historically much more likely to be defined as white than as black. Australia had no

equivalent to the “one drop” rule. This was in keeping with the policy of assimilation,

and it means that today many Australians have Aboriginal heritage of which they are

unaware. Because of the enormous disadvantage associated with being defined as black,

many Aboriginal people historically have “passed” as white. Many are only now

reclaiming the heritage that was denied to them for so long, which explains why the

percentage of people identifying themselves as Aboriginal has increased in recent census

counts. (Although, in any case, as for blacks in the United States, black Australians have

historically been undercounted.) Today, the government uses a three-part definition of

Aboriginality that is generally accepted by black Australians; it provides that “an

Aboriginal or Torres Strait Islander person is a person of Aboriginal or Torres Strait

Islander descent who identifies as an Aboriginal or Torres Strait Islander and is accepted

as such by the community in which he or she lives.” The question of black Australian

identity at the dawn of the twenty-first century is a complex one. Aboriginal leaders

throughout the 1960s and up to today have looked to the black struggle in the United

States for inspiration. Today, however, many younger Aboriginal leaders question this

identification and have aligned themselves more closely with indigenous peoples around

the world, such as with Native Americans, for example. This trend has been reflected in

the political struggles on which Aboriginal leaders have focused. In recent years, they

have increasingly focused on land rights and a treaty, though, of course, civil rights issues

are still very much a part of the black agenda.

Dr. Sykes points to the uniqueness of the Aboriginal identity: Aboriginal Australians

are at once black and indigenous. Their struggle is likewise unique, at once having

similarities and differences with the struggles of black Americans and Native Americans.

Nothing better illustrates the current debate over Aboriginal identity than the controversy

that currently surrounds Dr. Sykes herself. It has long been known that Dr. Sykes’s

mother was white and, although her father was not personally known to her, she always

maintained that he was Aboriginal. In fact, it has emerged that Dr. Sykes’s father was

more likely an African American serviceman stationed in Australia during World War II.

In the wake of this revelation, Dr. Sykes has faced a barrage of criticism from both black

and white Australians. That this should be an issue of controversy at all is interesting,

since for a long time black Australians identified almost completely with black

Americans. That it is controversial speaks to the fact that Aboriginal Australians now

wish to assert an identity separate and different from that of African Americans.
 This is not to deny the very strong pull that the African American experience has for

many Aboriginal Australians. Young black Australians often dress in a manner similar to

that adopted by young black Americans; they listen to hip-hop and admire black

American athletes. In 1998, Minister Louis Farrakhan visited Australia for the specific

purpose of meeting with Aboriginal leaders, and he clearly saw the plight of Aboriginal

Australians as analogous to that of American blacks. When Minister Farrakhan visited

the inner-city neighborhood of Redfern in Sydney, he was greeted with cries of “Brother”
26
and received an exceptionally warm welcome. Minister Farrakhan’s visit was

enormously controversial within Australia because of his reputation for anti-Semitism.

Indeed, he was almost denied a visa because the government claimed they feared he

would make statements in violation of Australia’s racial vilification laws. Clearly, the

government’s real concern was that Farrakhan would draw unfavorable media attention

to the plight of Aboriginal Australians. In reality, the visit drew little coverage in either

the Australian or international press. Notwithstanding this, the plight of Aboriginal

Australians has definitely become more visible in the wake of the Sydney 2000 Olympic

games and the international success of movies such as Rabbit Proof Fence. Australia is

also currently the country de jour in the United States, with Australian actors and

musicians more visible than ever before on the world stage. The country itself is

experiencing a surge in international tourism. With visibility, of course, comes power,

and black Australians are hoping they can use the attention trained on their country to

finally gain the redress to which they are entitled.

26
Nadia Jamal, “Aboriginal Misery Is Shame of Australia Says Farrakhan,” Sydney Morning Herald, Feb.
16, 1999.
 §3.3.2 The Maori of New Zealand

Like Australia, New Zealand is a majority white nation located in the heart of the

Asia-Pacific. New Zealand shares much in common with its larger neighbor, although,

with a total population of just over 3 million,27 it is much smaller. (Sydney, Australia’s

largest city, has a population of more than 4 million, and the total Australian population

is more than 20 million.28) Today, New Zealand’s population is more than 80 percent

white.29 The oldest inhabitants of New Zealand are the Maori, a people whose ancestors

settled the previously unoccupied land in a series of migrations from eastern Polynesia

starting some thousand years ago. Ethnically and linguistically, the Maori share much in

common with other Polynesian peoples who inhabit South Pacific islands such as Hawaii

and Fiji.

The Maori are made up of more than 40 distinct tribes sharing a common language

(in contrast to Australia, with more than 200 Aboriginal languages). Before the white

colonization of New Zealand in the late eighteenth century, and despite their shared

language, there was considerably less sense of shared Maori identity than there is today.

Today, while important differences remain in the interests and culture of the Maori

people, a much stronger sense of Maori solidarity has developed, partly as a means of

defending Maori culture and institutions against the white colonizers. (In the Maori

language, New Zealanders of European origin are called “Pakeha” and New Zealand is

known as “Aotearoa,” meaning the land of the long white cloud.) The Maori make up

27
United Nations, Population and Vital Statistics Report, 1983.
28
Id.
29
Richard Mulgan, Politics in New Zealand 29 (1994).
almost 15 percent of the New Zealand population. 30 Other minorities, such as Pacific

Islanders and Asian immigrants, together make up another 5 percent of the population.31

For a long time, the view persisted that the history of race relations in New Zealand was a

harmonious one in which the interests of Maori were taken into account and respected.

This view is wrong and ignores the massive injustices suffered by the Maori population

both historically and in the present day. It is true that the Maori were able to negotiate a

better deal than many indigenous peoples, but, given the deplorable treatment of

indigenous peoples in general, this is not saying a great deal.

The critically acclaimed movie, Once Were Warriors, searingly portrays the

contemporary condition of Maori in New Zealand. The movie depicts, in unflinching

terms, the devastating impact of European colonization on Maori institutions and the

Maori way of life. Today, using most indicators of socioeconomic well-being, Maori are

considerably worse off than most New Zealanders. The Maori unemployment rate is

almost three times the national average; they comprise almost half the prison population;

the infant mortality rate is far higher than for white New Zealanders; and life expectancy

is much lower than for the white population.32 It is clear then — and today most New

Zealanders would accept this proposition — that white colonization has had a devastating

impact on the Maori. Many important differences, however, distinguish the Maori

experience from that of other colonized peoples. Unlike Australian Aborigines, the Maori

experienced no widespread genocide, and Maori children were not forcibly removed from

their families. Maori were also not systematically removed from their lands; more

commonly, land was relinquished to the colonists in trades (the terms of which were

30
Id. at 32
31
Id.
32
Id. at 26
often, however, disadvantageous to the Maori). The rate of intermarriage between Maori

and European New Zealanders is higher than for any indigenous people anywhere, and

overt racism against the Maori is far less common than against black Australians and

Americans.

Like Aboriginal Australians, and unlike Native Americans, today more than 80

percent of Maori live in urban areas. Unlike Aboriginal Australians, Maori do not

identify themselves as black, nor do they look to the black struggle in the United States as

a model for their own struggle. In New Zealand, as in Australia, the race debate is less

formalized, and minorities are not as easily fitted into constructed categories such as

“black” and “white.” If Maori identify themselves as anything other than Maori, it would

be as indigenous, Polynesian, or “brown.” Maori often call themselves “tangata whenua,”

or “people of the land.” While they might define themselves in opposition to the

predominant white culture, it is more common for them to speak in terms of partnership.

Within that concept, however, the idea of a distinct, coequal Maori culture is central.

Increasingly, that notion is being expressed through the idea of “Maori sovereignty” or

“Maori self-determination.” While the idea that New Zealand has had a harmonious

history in the area of race relations is clearly false, it is certainly true that the Maori are

better integrated into New Zealand politics and society than are the Aborigines in

Australia. This is undoubtedly partly due to the fact that the Maori comprise a larger

percentage of the population. Maori hold a number of seats in the New Zealand

parliament (some seats are especially reserved for Maori representatives), although still in

numbers far less than their proportion of the general population. A recent deputy prime

minister, Winston Peters, is Maori. In Australia, by contrast, only two Aborigines have
served as senators at the federal level (only one is currently in office) and no Aborigine

has been a member of the federal House of Representatives.

Unlike the United States and Australia, New Zealand has no history of de jure legal

discrimination. Under the Treaty of Waitangi (“Te Tiriti.o Waitangi”) of 1840, the Maori

acquired the full rights and privileges of British subjects. The Treaty of Waitangi

comprises just three short articles and, despite New Zealand’s essentially Westminster-

style democracy, it is regarded by many today as one of New Zealand’s most important

founding constitutional documents. By the first article, Maori transferred sovereignty to

Queen Victoria; the second article retained to Maori the “full and undisturbed possession

of their lands, forests, fisheries and other properties”; and by the third, all Maori were

declared to be British subjects.

Two versions of the treaty were made: one in English, the other in Maori. Crucially,

they didn’t say the same thing. Under the Maori version of the treaty, Maori ceded

something rather less than sovereignty and retained “rangatiratanga” — full and complete

chieftainship or authority — over their lands. In the aftermath of the treaty, protracted

land wars took place between the colonizers and the Maori, the end result of which was

further devastating confiscation or loss of tribal lands. The Maori population declined

dramatically over the course of the nineteenth century, primarily due to introduced

diseases, although in recent decades the population has grown considerably.

For a long time, so far as the legal system was concerned, the treaty had no status at

all. In an infamous nineteenth-century case, it was declared a “simple nullity.”33 Over

time, however, Maori came to focus on the treaty as the measure of the wrongs that must

be repaired in respect of land, forests, water, fisheries, and human rights for the Maori
33
Wi Pa Rata v. Bishop of Wellington, 3 Jur (N.S.) SC 72, 78 (1877).
people. In the 1960s and 1970s, widespread demonstrations in protested the injustices

suffered by the Maori people. In an attempt to meet some of the protestors’ claims, the

government in 1975 set up the Waitangi Tribunal as an independent statutory body

charged with hearing and inquiring into claims by Maori of injustice on the part of the

Crown. It had the power only to make recommendations to the government, not to make

final decisions. To begin with, it was limited to investigating grievances that occurred

after its establishment in 1975. A decade later, in 1985, the government responded to

political pressure from Maori groups by extending its jurisdiction to cover all grievances

arising since the Treaty of Waitangi was signed in 1840. Within two years of this change,

the number of claims awaiting hearing went from around 40 to 200; by 1993, the number

of outstanding claims awaiting hearing totaled 350.34 In the late 1980s, the New Zealand

government began a process of selling off government assets, many of which were

already, or could be in the future, subject to Maori claims before the tribunal. The Maori

were concerned that once the assets were out of government hands they would have no

means of redress. They brought a case challenging the legality of proposed sales by

seeking enforcement of a provision of the legislation that the government had thought

relatively ineffectual.35 As a result of prior negotiations, the statute had been amended to

include the phrase, “Nothing in this Act shall permit the Crown to act contrary to the

principles of the Treaty of Waitangi.” The Court held that this prohibited the government

from carrying out sales of certain crown assets without negotiating with the Maori a

mechanism for protecting present and future claims to those assets. The Court

enumerated a number of important principles derived from the treaty. First, they held that

34
Id. at 167ff.
35
NZ Maori Council v. Attorney General (1987).
the government had the right to make laws, but that it must accord Maori appropriate

priority in that process; second, the Maori retained the right to manage their resources

and treasures; and, third, the government was required to respect the principles of

equality, of cooperation, and of redress. All of this meant that the Crown had to accept

that it had failed its treaty partner and was legally obligated to make redress.

In response to this decision and subsequent decisions extending the application of the

principles, the government decided that it needed to institute a political solution, and, in

1994, it proposed a “fiscal envelope” of one billion dollars for full and final settlement of

all Maori claims. This proposal was unpopular with Maori who found problematic the

idea that all claims were to be finalized, (particularly since the total dollar amount of the

claims was far in excess of $1 billion). They also resented that the government thought it

could dictate terms of the settlement. In the aftermath of the offer, a number of claims

have been negotiated with the government, which appears to be accepting the Maori

position that no dollar cap should apply to the settling of claims.

Clearly then, the New Zealand government has been more responsive to Maori claims

than the Australian government has been to aboriginal claims, though New Zealand has a

long way to go to in recognizing the devastating impact of white colonization on the

Maori people. The recognition by both the New Zealand Court of Appeal and the

parliament that a substantial settlement is called for — and that any compensation has to

go beyond just land rights — should, however, not be underestimated. The Australian

government has yet to recognize this reality.