Aboriginal Sovereignty and Status in The Empires of Uniformity

3
Aboriginal Sovereignty and Status in the

Empire(s) of Uniformity
Overview
Through the seventeenth and most of the eighteenth centuries, the formal pattern of
British relations with non-Christian societies carried strong residual traces of a
medieval and personalized approach to the nature of sovereign authority. This was
expressed through an underlying jurisdictionalism by which British authority over
non-Christians was based upon treaty, protocol and suchlike relations with those
people. Essentially this approach recognized and worked through the political authority
of the non-Christian polity. In the late eighteenth and nineteenth centuries, however,
a new, modern approach towards sovereign authority emerged and was applied to
tribal peoples. This chapter describes that transition.
In the United States the jurisdictionalism of the colonial era represented by the
Royal Proclamation (1763) was transmuted by the court of Chief Justice Marshall
into a doctrine of residual tribal sovereignty. The British rejected that approach and
lurched from episode to episode in the second quarter of the nineteenth century
towards a more absolutist and thoroughgoing concept of Crown sovereignty over
tribal peoples. This process came about mostly through the need to define more
precisely the Crowns criminal jurisdiction over the tribes as British settlement spread
in the post-Napoleonic period. The Crowns exclusive sovereignty was moderated by
its obligations as guardian to use its constitutional discretion to protect the tribes and
its members. The tribes best protection lay, the British were sure, in subjecthood
rather than an American-like apartness. The British position was that the tribes lacked
juridical status and standing in the colonial legal system. This meant their legal
protection was channelled through the Crown. American courts also spoke of the
tribes as wards but, unlike the British, accepted the inherent legal authority of the
tribe amongst its own people (whilst also disabling the tribes from using the courts in
pursuit of their rights against the government). Governors of Britains settlement
colonies may have tolerated tribalism but this was policy in the administration of the
law and no more than a temporary shielding. In these British possessions, the tribe
was never regarded by colonial and imperial officials or (least of all) the settlers as
having a juridical foundation.
Those mantles of federal and Crown sovereignty ran parallel to the massive settlement
and technological developments of the nineteenth century that brought great demand
Aboriginal Societies and the Common Law. P.G. McHugh.

Oxford University Press 2004. Published 2004 by Oxford University Press.
118 Aboriginal Societies and the Common Law
for tribal land. As this happened the settler polities developed an accompanying and
growing consciousness of their distinct constitutional identity. As their economies and
political institutions consolidated and grew more confident, there formed in all
jurisdictions a sharper sense of the absolute character of the legislative power. Once the
tribes had been physically vanquished in the great mid-century wars and dispossessions,
all jurisdictions set about erecting legal regimes for the dissolution of the tribalism that
both impeded the progress of settler society and challenged its constitutional authority.
For tribal peoples the end of the nineteenth century saw the onset of the Empire(s) of
Uniformity.
***
1. Introduction
The tempo and character of British imperialism changed dramatically after the
Seven Years War and the Treaty of Paris (1763). With the French threat considerably
diminished, emigration to British North America increased significantly. This influx
aggravated the already heavy westward pressure on land for settlement. Meanwhile
the reach and power of the East India Company had been considerably enhanced by
Clives victory at Plassey (1757). With those important military victories, the Britain
of the early 1760s found itself with large numbers of non-Christian people under its
rule. However, for a long while after those victories, the precise juridical character of
these non-Christian peoples status remained unresolved. So long as circumstance
did not push the issueas eventually it mustthe question was not directly
addressed through most of the second half of the eighteenth century. By the time the
century was closing the consolidation of British dominion in these non-Christian
parts was pushing the question of Crown relations and authority. In North America
(republican and loyalist), there was the ever-growing, unquenchable demand by
settlers for land. At the same time half a globe away, controversy raged over the East
India Companys management of its jurisdictional rights in Asia. These strains
brought a growing need for clearer juridical definition of the status of those
non-Christian people.
It has been seen that during the early nineteenth century the Crown eventually
acknowledged that it held sovereignty over the non-Christian people of British India
and North America, a belated and awkward step that followed decades of inattention
and, more latterly in the piece, avoidance of the question. So far as the Amerindian
people were concerned, the avowal of Crown sovereignty of itselfmere legalism
did not displace their customary forms of political organization (the tribal nation) and
customary laws. Likewise American Independence and the assertion of the republics
sovereignty did not produce any such result: apart from those on the Atlantic seaboard
the tribes of the interior maintained a custom-based integrity and remained still
powerful political forces. British and republican practice to the end of the eighteenth
century and into the nineteenth had to work with those forms, however fragmented
they might be (as around the Great Lakes). However, as the need to solicit aboriginal
support in military matters abated and the pace and westward push of settlement
Aboriginal Sovereignty and Status in the Empire(s) of Uniformity 119
increased in North America, imperial and republican policymaking became more

interventive and hands-on. Arms-length dealing and strategizing with the powerful
fur-trading Indian nations of the interior were no longer the object of official relations.
The tribal nations themselves were being drawn into closer-quarter relations with the
settlers and their economy and this also affected the settler polities impression of its
authority over them. Landthe acquisition of it for white settlementbecame the
focus. Circumstance now demanded the reconciliation of aboriginal status with the
sovereignty of the Crown (in British North America) and American republic that
European nations could no longer traduce.
By the early mid-nineteenth century, British officials and practice regarded the
nature of Crown sovereignty in its (remaining) American possessions as thorough-
going and exclusive. A more doctrinaire and absolutist approach superseded the
essentially improvisatory ways of the old jurisdictionalism. As this happened, the
fate of the tribal nations of the Atlantic coast, long since reduced to dependency and
their land-base depleted, was also to become that of the great prairie nations. That
journey from sovereign independence to depletion and dependence would be the
doom of those Indian nations east of the St Lawrence basin during the nineteenth
century. This chapter will later show that as the fate also of the tribes in the American
republic as settlement spread into the Ohio basin, the Great Plains, and inexorably
towards the Pacific.
This juridical transition from sovereign independence to subjection was a slide
down which the East Indies polities were also descending, at least in British constitu-
tional theorizing. In the century after Plassey (1757), the East India Company and
Crown moved from interloper to protector to, eventually, declared sovereign.
However the outcome of this journey was not the same for the Amerindians as the
people of the Indian subcontinent. The Raj had continued the East India Companys
early accommodation of Hindu, Muslim, and English law, although that had been
adulterated by attempts to codify and anglicize. The sovereignty proclaimed over
India by the young Victoria, its newly styled Empress, was titular but in substance still
deeply dependent on Indian support. The Mutiny of 1857 revealed starkly the extent
of that reliance. It was reflected in Britains return to a policy of recognition of princely
sovereignty late in the nineteenth century. Put crudely, the British never outnum-
bered or, when all was said and done, outgunned the people of the subcontinent.
Eventually, necessity and bitter experiencethe aftertaste of 1857 not least
brought the British to reconstituting and working through Indian sovereignty. The
goal in (British and republican) North America, however, was the exact opposite.
Again it was the outcome of circumstance. As settler numbers overwhelmed the tribal,
the policy increasingly followed through the nineteenth century contemplated the
dissolution of tribalism. Native sovereignties were used where that suited the imperial
design or spiked when it did not.
In North America and Australasia at the end of the nineteenth century the settler-
state claimed not only the titular sovereignty but also a very real physical domination
over the indigenous peoples. In these parts, unlike the subcontinent, permanent
white settlement had been the design and the outcome. That supremacy had been
achieved after war with the plains Indians of the American continent (north and
south of the 49th parallel) and the Maori of New Zealands central North Island in
the 1860s and 70s. It was also expressed through the new forms of legalism devised
by the settler-state for managing relations with its aboriginal peoples, particularly in
the aftermath of those hostilities. The settler-states ascendancy was harder won than
it cared to admit, an insecurity demonstrated by the ferocity with which it attacked
(and reviled) tribalism. United States law seemed to make an earlier and greater
apparent accommodation of the tribalism that so offended late nineteenth-century
eyes, do-gooder and foe of the Indian alike. There, however, as in the other jurisdic-
tions at the end of the nineteenth century, laws set in place processes designed to
civilize the native and acquire their remnant land for those who better knew how to
exploit it. In all jurisdictions, then, the tribes experience of colonialism intensified
considerably during the nineteenth century, the last quarter most especially. For
many it was a case of war followed by law. Each proved as debilitating as the other,
and probably were indistinguishable in the minds of aboriginal peoples. The lawfare
of the settler state attempted to suppress their traditional forms of political associa-
tion and identity. It supplied a means of taking their land. It professed either to lead
indigenous peoples to civilization or to manage them as anachronistic relics of their
doomed tribalism. This law did not of itself cause the misery, but it was the apolo-
gia of those men who did.
The acknowledgment of British dominion over the non-Christian peoples in British
America and the East Indies required a fuller articulation of their status than the military
and trading considerations that had previously driven relations. Not surprisingly, as that
consciousness emerged during the late-eighteenth century and into the early nineteenth,
the British drew upon past practice and remoulded it to the exigencies of the present. At
that time this practice carried its own momentum of legality, yet by the end of the nine-
teenth century that legality had become more a matter of stipulation than custom.
American courts also considered this question early in the nineteenth century but,
informed by the young republics recent experience, took a position different to that of
the British. This chapter considers the evolution and history in this period of rising and
changing consciousness about the legal position of tribal peoples. The nineteenth cen-
tury began with vague protestations of the Crown and republics respective trusteeship
roles and with aboriginal societies still mostly in a condition of actual, if increasingly frail,
autonomy accepted as such by the white authorities (the battered remnants on the
Atlantic seaboard mostly excepted). Through the nineteenth century, as the Australasian
colonies entered the picture, questions of the various tribes juridical capacity and status
became more prominent in British and republican practice. In British North America
and Australasia, it ended in elaborate statutory regimes framed by settler-nations with
new constitutional arrangements and status in the Empire. These codes for the manage-
ment of tribal peoples encased, indeed virtually entombed aboriginal culture. In the
United States a similar process occurred as a doctrine of supervening Congressional
authority over Indian nations took hold late in the century and glossed earlier principles
of residual tribal sovereignty. In the final decades of the century the enveloping American
laws affecting Indian tribes were judicially as well as legislatively erected. The resultthat
of thoroughgoing encasement by lawwas the same as in other jurisdictions. Legal
subjection marched alongside the physical subordination of aboriginal nations.
British practice will be discussed first, followed by the American. This chapter ends
with a description of how the legal regimes of each jurisdiction enclosed tribal peoples
as the nineteenth century closed.
2. Claiming and exercising sovereign authority over tribal

societiesBritains imperial trusteeship
The appearance of a need to describe the character of British authority over
non-Christian peoples coincided with that phase in Euro-American history known as
the Enlightenment. One should not speak of the Enlightenment as a process or event,
for it was a broad, complex discourse (or series of them) encompassing many diverse
and often contradictory strands. The rights of man and the integrity of the individual
represented one particularly dominant strand of Enlightenment consciousness. Strains
of evangelical Christianity also blended with that thinking about mankind, and gave it
an aggressive edge that peaked with the humanitarian movement in early Victorian
England.
Humanitarianism grew from late eighteenth- and early nineteenth-century
evangelicalism, which maintained the traditional holistic view of the world as an
integrated order requiring Christians to be as much concerned with political and social
as purely confessional issues. This humanitarianism was fuelled also by the prevalence
of Arminianism in the Anglican Churchthe belief in free will and responsibility. This
became inseparable from the equally pervasive ideology of free trade, which called for
the liberalization of productive and commercial relations. The values of individual
responsibility and self-interest were regarded as the optimal spur to both productive
labour and salvationthe free market in labour, trade, and souls. This humanitarian-
ism had permeated the upper reaches of British society in the post-Napoleonic period,
assisted by the famous Clapham Sect, where it became a central element in the broad
movement managing the adaptation to an industrial economy and society. 1 In Britain
it peaked in the reforms of the 1830s, including the legislative emancipation of slaves
(1833).2 Having achieved that, the abolitionists turned their attention to the plight of
indigenous peoples. Indeed, reform abroad often seemed more palatable to these
people than reform at home. Humanitarians took a high profile in British public life
during the second quarter of the nineteenth century, but their influence, whatever it
had been, waned after that. However their agitation had made the fate of tribal peoples
a matter of more overt official concern than otherwise would have been the case, and
in doing so added momentum to the nascent theme of imperial policy stressing the
sovereigns trusteeship.
As Imperial Britain thought about its duties in relation to non-Christian peoples,
imperialists of various hues, official and otherwise, returned to the long-standing
1
T Keegan, Colonial South Africa and the Origins of the Racial Order (Charlottesville, Virgina: University
Press of Virginia, 1996) 7582.
2
An Act for the Abolition of Slavery throughout the British Colonies; for promoting the Industry of
the manumitted Slaves; and for compensating the Persons hitherto entitled to the Services of such Slaves
3 & 4 Will IV cap 73 (28 August 1833). The oceanic slave trade had been abolished in 1808 (47 Geo III
Sess 1, cap 36).
though until then rather inconsistently uttered duty to introduce Christian civilization
to the heathen. The influential stadial view of human history was associated with
Scottish thinkers of the second half of the eighteenth century such as Millar and
Fergusson.3 History became viewed not as a Polybian cycle of decline and renewal, but
as a progression through four stages of development from hunter-gatherer, pastoral,
agricultural to commercial society. This stadialism, which usually excluded the cruel
despotism of Asia, caused most humanitarian talk to locate particular tribal peoples on
this scale. The humanitarian witnesses before the Aborigines Select Committee
(183637) went to lengths to talk up certain aboriginal societies (those of southern
Africa most notably) as a sign of their movement (with missionary assistance) towards
civilization and participation in that single history. At much the same time in the
United States Jeremiah Evarts famous William Penn essays repeatedly characterized
the Cherokee as thriving agriculturalists with their own laws and system of government.4
Much of the British policy in acquiring sovereignty over New Zealand (1840) was
predicated upon Maori being sedentary agricultural and self-governing people.5 This
notion of civilization encompassed the entire human family (monogenism) and
purported to describe a momentumor law of developmentcommon to all. The
parochialized and racialized late nineteenth century notion of civilization was
altogether different.6 However, the mid-nineteenth century conception of civilization,
in all its permutations, still drew on what was then the rather ragged Scottish tradition.
Like the humanitarianism it informed and the legalism to which it was harnessed, it
was rooted in a view of the ultimate unity of mankind.
The older theme of British imperialism, the fluid constitutionalist one stressing the
legality of colonization and empire of liberty, entangled with this strengthening notion
of civilization. Victorian evangelism mixed with it too. In that regard there was no
better proponent than the Aborigines Protection Society. This London organization
was an early pressure group, like the Church Missionary Society, and was associated
with the humanitarian movement of the mid-century. It grew in influence after being
founded by five members of the Select Committee on Aborigines that issued a famous
report in 1837. Benthamite-tinged proposals from the Aborigines Protection Society
included a Bill of Aboriginal Rights ( January 1838) and a legislative programme
based on trusteeship principles.7 It took the position that the interests of aboriginal
peoples were best realized through the civilizing influence that came from recognition
of their rights of property and the extension towards them of the same liberality of
treatment that marked the Crowns relations with its natural-born subjects. As the
3
Mark Hickford, Decidedly the most interesting savages on the globe: an approach to the intellectual
history of Maori property rights, 18301850, paper delivered to the New Zealand Historical Association
Conference, University of Canterbury, 2 December 2001.
4
See Cherokee Removal: the William Penn essays and other writings by Jeremiah Evarts, FP Prucha (ed), and
with an introd (Knoxville: University of Tennessee Press, 1981).
5
Pat Moloney, Savagery and Civilization: Early Victorian Notions (2001) 35:2 New Zealand Journal of
History 153.
6
Mark Francis, The Civilizing of Indigenous People in Nineteenth-Century Canada (1998) 9 Journal
of World History 51.
7
P Adams, Fatal necessity: British intervention in New Zealand, 18301847 (Auckland: Auckland
University Press, 1977) 93.
British considered the status of the Crowns non-Christian subjects they instinctively
and chauvinistically applied the idea of law which they regarded as the foundation of
their polity and the Empire. What was best for them, was best for everyone (the tribal
especially).
At the Colonial Office Lord Glenelg and James Stephen had evangelical sympathies
and shared with the humanitarian movement the association of Christianity and
British subjecthood as mutually redemptive conditions. During the second quarter of
the nineteenth centuryin the period immediately before the onset of responsible
government in the coloniesimperial officers of their ilk, influenced but not mesmerized
by the Clapham Sect, consistently regarded the amenability to English law that came
with Crown sovereignty as the best protection of aboriginal interests. This obligation
was now ranking high on the imperial agenda.
In the 1830s, to give an early theme-setting example, the humanitarian movement
opposed the passage of vagrancy laws in Cape Colony. Ordinance 50 (1828) had been
passed by Acting-Governor Bourke under London Missionary Society influence, and
ratified by London.8 It famously removed legal disabilities affecting the tribal Khoi
(Hottentot) people, although, contrary to legend, it preserved their distinct status in
the colony and did not treat them in a colour-blind fashion.9 The pass laws were
repealed as well as the statutory criminalization of vagrancy. Summary punishment
without benefit of trial was also prohibited. In keeping with the anti-slavery mood of
the time, Ordinance 50 abolished all forms of compulsory service and set rules and
formalities for all contracts of service, including the obligations of children and
spouses. It also affirmed the right of Khoi to buy and own land. The Ordinance has
acquired a profile in South African historiography well beyond its actual significance in
its own time. Anyway, its legal liberalism and equality of treatment did little to abate
Khoi landlessness and poverty.10 The colonists themselves loathed the law and in 1834
proposed the re-introduction of vagrancy laws. In the event London disallowed the
local legislation to that effect11 although in the longer run the liberal policy of the Cape
was doomed.
Disallowance was an outcome that might have been expected in the same period as
slave emancipation so engaged the political energy of Englishmen. In this period before
extension of full local jurisdiction over aboriginal relations, it presaged the ongoing
tension between, on the one hand, the equality of all British subjects and, on the other,
the perceived need for special legal treatment of tribal peoples. In the following century
that tension was a recurrent theme in the legalism surrounding aboriginal peoples.
Tribal people under Crown sovereignty were to be treated as though they were British
subjects (which they were); indeed, as the humanitarians and Colonial Office avowed,
8
Keegan, Colonial South Africa and the origins of the racial order, 103.
9
Ibid 104. Thus Fairbairn, the humanitarian editor of the Commercial Advertiser newspaper
commented in November 1828: The propriety of recognising two distinct nations within the Colony as this
Ordinance does, is very questionable. There should be one law for all free persons. (quoted ibid 319, n 105).
10
Ibid 104, 116119.
11
The documents, including several legal opinions, are in the appendix to Report from the Select
Committee on Aborigines (British Settlements); with the minutes of evidence, appendix and index. British
Parliamentary Papers 1837, Paper 425.
that was vital to the protection of their interests. Yet that legal status was apt to be no
more than notional, for it was invariably qualified or in some way left incomplete (as in
denial of the right to vote). In the period before responsible government that impulse
towards equal status was a metropolitan one prone to qualification by local pressure. To
the extent that the locals accepted the principle of equality they hedged it with qualifi-
cation in such a manner as the vagrancy law proposal in the Cape. Once the local
assembly was jurisdictionally equipped, its will ultimately prevailed through the enact-
ment of special, discriminatory laws such as those described later in this chapter and
the next. The legal experience of the tribal peoples in the Cape thus prefigured a simi-
lar historical pattern in the jurisdictions of North America and Australasia.12 More
often than not the equality the law offered, like the discrimination it also licensed,
worked against them.
As the nineteenth century progressed, the emerging and increasingly prevalent
liberalism heavily influenced the approach towards relations with and governance of
subject non-Christian peoples. Liberalismlike the Enlightenmentwas no coherent
doctrine or programme so much as a disposition or tendency. As with Christianity, it
encompassed a variety of heterogeneous positions and developed over a long period of
social upheaval and political change. Above all liberals believed that human nature was
intrinsically the same everywhere, and that it could be totally and completely
transformed, if not by revelation, as the evangelicals envisaged, then by the workings of
law, education, and free trade.13 Liberals never doubted the possibility of the wholesale
transformation of society, their own and, most particularly, the lesser uncivilized ones
they had come to govern. Indeed, despite the new order inaugurated by the Reform
Act 1832, England remained a difficult polity where those values could not always
prevail: local bodies, with the support of insurrectionary urban workers, opposed
sanitary legislation; landed gentry frequently contested the reorganization of local
government as well as repeal of the Corn Laws; aristocrats sought to retain the right to
duel and purchase army commissions. If there was one area where liberal values with
their emphasis upon the individuals capacity for improvement were relatively unop-
posed in England it was in their applicability elsewhere. All Englishmen agreed that the
uncivilized non-Christian peoples under British dominion were demonstrably inferior
and in need of improvement.
The threads of Victorian thought that influenced or that were deployed to justify
aboriginal policy in the colonies were occasional, half-formed, and applied episodi-
cally. In many cases this thought supplied an excuse for action rather than a spur.
Where there was a semblance of coherence in attitude towards the status of aboriginal
peoplesas in the Colonial Office of James Stephen and, to a lesser extent, Herman
Merivale in the early Victorian periodit was not necessarily shared by other interest
groups (such as those in the City). Yet, if there was a time when a coherent and uniform
position on the status of aboriginal peoples in British colonies could have formed it
was in these early Victorian years when a sharper legal consciousness was emerging,
12
Andrew Bank, Losing faith in the civilizing mission: the premature decline of humanitarian liberalism
at the Cape, 184060 in Daunton and Halpern (eds), Empire and Others: British Encounters with Indigenous
Peoples, 16001850 (Philadelphia: University of Pennsylvania Press, 1998) 364.
13
Thomas R Metcalf, The Ideologies of the Raj (Cambridge: Cambridge University Press, 1995) 29.
encouraged in part by the similar reflecting of American jurists. At that time London
kept a tight grip of native policy and would not release its trusteeship to the colonial legi-
slatures. Also there were officials at the helm with the intellectual capacity consciously
to forge a law-based policy matching the freshness of the American. However, though
imperial officials articulated the guardianship role of the Crown they were too wedded
to their secular (and some measure of Christian) evangelism. There was an unshakeable
belief in the virtues of the British constitution and the benefits that Crown sovereignty,
once assumed, and concomitant English law offered tribal peoples. They maintained a
strong belief in the pyramidic structure of the colonies and the exercise of constitutional
discretion through the Governor. The principles that they continued to articulate and
put into practice in native affairs simply (and in true common law fashion) maintained
the practices from the previous century, albeit with a sharpening sense of the protective
role of Crown sovereignty. There never evolved a cogent, articulated set of aboriginal
rights.14 That, after all, had been one of the aims of the Aborigines Protection
Society whose Benthamite belief in codification had been resisted by the Colonial
Office. True common lawyers, the official regimes of Stephen and Merivale preferred
to tend these relations by cobbling from the material already available rather than by
handcuffing themselves in a statutory regime. There was no formed consciousness of
a set or corpus of aboriginal rights, so much as a loose set of principles governing the
management and conduct of relations with tribal peoples. These involved the
interaction of the Governor and his political masters in London guiding the exercise
of his considerable constitutional discretion. Even where legislation was sought in
this period for the management of imperial activity in lands inhabited by tribal
peoplesthe Foreign Jurisdiction Act (1843) the example par excellenceit was to
endorse the continuation of an incremental approach based upon high executive
discretion. Above all, and whatever the influence of the various brands of nineteenth-
century thought, a common law mentality prevailed in the early Victorian Colonial
Office.
A new mode of thought called social Darwinism spread during the 1860s as the
settlement colonies were acquiring and quickly becoming used to the exercise of
legislative authority in native policy. This new manner of thinking, which introduced
the mantra of survival of the fittest, brought the tired and ragged Scottish tradition to
a grinding halt. Historians of aboriginal relations in the settlement colonies have
described the Darwinist mode of thought as a paradigm that motivated the oppressive
statutory regimes erected in the final decades of the century.15 However, the extent to
which colonial authorities were actually relying upon social Darwinism, or, indeed,
any coherent set of political beliefs is problematic. If the political versions of
Darwinism did influence colonial and republican practice it was in a scrambled
manner mixed with Victorian religious moralism and providentialism16 as well
14
See the comprehensive account in Mark Hickford, Making Territorial Rights of the Natives: Britain
and New Zealand, 18301847 (D Phil dissertation, University of Oxford, 1999).
15
Henry Reynolds, Frontier, Aborigines, Settlers and Land (Sydney: Allen & Unwin, 1987); DJ Mulvaney
and JH Calaby, So Much that is New, Baldwin Spencer, 18601929 (Melbourne University Press, 1985).
16
Mark Francis, Social Darwinism and the Construction of Institutionalised Racism in Australia
(1996) 51 Journal of Australian Studies 90.
as a vague liberalism. Colonial political discourse, its legal dimension included, was
robust, but vastly smaller and disjointed, less complex, highly improvisational and
more excitable than that of the more sophisticated metropolitan one. It is difficult, for
example, to speak of coherent languages of discourse occurring in the colonial polities
of early and mid-Victorian Australasia and Canada. These were polities where individ-
uals could make a big splash and dominate local politics by force of personality rather
than power of creed or ideology. Nonetheless there is no doubt that from the 1860s all
colonies as well as the United States applied more aggressive policies of intervention in
aboriginal life. In this period the civilization of the native had overtones that it
certainly lacked earlier in the century when Scottish stadialism still had some purchase.
Civilization came to describe a state into which aboriginal culture would be prodded
and shepherded by the calculated application of laws and policies of assimilation. The
monogenetic idea of a single family of man had been replaced by a sense of the
Darwinian survival of the superior European civilization. No longer was it a story of a
single though variegated us embarked upon a common historical trajectory. It was a
tale of a special us and a separate them, each locked inside their own histories engaged
competitively in a Darwinian tussle for survival.
The statutory regimes that encircled aboriginal peoples during the late nineteenth
century in order to civilize them were less the philosophically-driven outcome of the
ragbag of political ideas characteristic of colonial and republican discourse at the time
than the growing pressure on aboriginal land. The inventions of a steam-driven world,
such as refrigerated cargo-holds, transcontinental railway lines, and the grain-harvesting
of the Canadian prairies, accentuated that pressure. Civilization was as much about
obtaining aboriginal land for settlement as an ideological mission to transform their
society.
Nonetheless these Victorian beliefs, in all their various shapes and hues, like the
American version known as Manifest Destiny, licensed a vision of the management of
aboriginal policy that grew in power during the nineteenth century (commensurate
with the pressure for land for white settlement). This was a belief in the benefit and
redemptive potential of individual enterprise. As the early American republic
transformed into a laissez-faire economy, that principle was regarded as politically
foundational and the heroic individual (especially those Indian-killing on the western
frontier) became the stuff of nationalist myth-making. This Anglo-settler vision
secularized through the century, in Britain as the influence of the Clapham Sect
which was never pervasive in its time anywaydrained. The intensity of the applica-
tion of this individualist and Anglocentric vision undoubtedly increased during the
nineteenth century. There was a juridical tightening of what had started as the vaguely
articulated principle of metropolitan trusteeship with its whiff of ancien-regime
paternalism. Trusteeship remained the theme of relations with aboriginal peoples but
now, mid-century in the settlement colonies, jurisdictional competence was transferred
from London to the local legislatures. The British colonies of settlement were granted
responsible government and (not always at the same time) legislative authority to
manage native affairs. So equipped, none needed a second invitation to use law to
meddle with aboriginal peoples autonomy and lifestyle. Instead of a distant paternalism
wielded through a Governor who mediated between the aboriginal and settler
communities, the settler polities actively projected the individualist vision onto the
tribal one. The tribalism that a century of Governors had condoned benignly or tolerated
bad-naturedly was now attacked frontally, with law at the helm. All manner of
Victorian thought and its Americanized versions could be rallied in justification of the
civilizing mission and goal of assimilation. The lawmakers administering aboriginal
policy and relations were no longer patriarchs but settler populists.
Only in southern Africathe region that promised yet seemed unwilling to deliver
the richesse supplied more freely by the colonies of Canada and Australasiadid that
policy remain less tenable in the final quarter of the nineteenth century. Throughout
the Victorian period British design and policy in this region was complicated by the
political impact of the nationalist Dutch settlers. Although major but bloody victories
had been won against the native nations during the late 1870s, it was only once the area
had been subdued after the Boer War that full attention could be turned towards any
programme of civilizing the many and various tribal nations.
The history of common law sovereignty and aboriginal peoples from the early
nineteenth century was, therefore, one in which aboriginal peoples became the objects
of increasing legalism. This was the case in all jurisdictions, British and the American.
In British colonies the administration of aboriginal affairs went from Governors to
settler legislatures. As the settler-state consolidated its sense of self, it tended increas-
ingly to see and treat aboriginal peoples as part of and entirely subject to its own
sovereignty rather than as separate polities. If the history of sovereignty described in the
last chapter represented a period when the common law was disposed towards a
pluralistic model, its orientation through the nineteenth century tended strongly the
other direction.
Even the Americans, whose new republic rested upon a conception of sovereignty as
limited and divided, could not escape that disposition, as a later section in this chapter
will explain. Jeffersonian civic humanism, for all its ambivalences about Indian policy,
was replaced by the rampant populism of Andrew Jackson. The Supreme Court of
John Marshall captured deftly the flavour of both tendencies. It described the
independent tribes as nations, but as domestic, dependent onesseparate but not
apart, holding their own tribal sovereignty whilst also incorporated into the American.
The willingness of the Australasian and North American legislatures in the last quarter
of the nineteenth century to frame laws for aboriginal peoples was an expression not
only of the pressures of increased settlement and demand for land, powerful as those
were. It was also a manifestation of emergent nationalism and more conscious efforts
by these jurisdictions to fashion their own constitutional identity. The economic and
political identity of the settler-state and its constitutionalism were linked. By that time,
America was experiencing Reconstruction after the Civil War and the great western
states, with their promise of gold and other riches, had joined the union. Canada had
confederated in 1867 with Ruperts Land following in 1870, British Columbia the year
after, and Prince Edward Island in 1873. New Zealand had been given a full federal
system in 1852 but that was dismantled and replaced by a unitary one in 1875.
Towards the end of the nineteenth century imperial federation was a much-discussed
issue in and among the Australasian colonies, the formation of the Commonwealth of
Australia being the outcome in 1900. In this period all British settlement colonies
experienced controversies of different sorts about their relations with the mother
country, episodes that reinforced the settlers experience of distance and that necessarily
produced a sense of political identity apart from the mother country. In the last quarter
of the nineteenth century, therefore, these jurisdictions were in their different ways
thinking about and acting upon their own constitutional identity. In many regards
aboriginal peoples were the victims of those essentially solipsistic (and narcissistic)
processes.
In the British settlement colonies this thinking about constitutional identity was
essentially an outgrowth from the system of responsible government devised by
imperial officials in the mid-nineteenth century anxious to prevent a recurrence of
the American breakaway. Responsible government was described by Alpheus Todd
(1894) as:
. . . a system of local self-government akin to that which prevails in the mother country,
introduced to relieve the Colonies of imperial interference in their domestic or internal
concerns; public affairs are administered in conformity with the principles of ministerial respon-
sibility which, since the Revolution of 1688, have been engrafted upon the British Constitution;
the members of the [colonial] Government are appointed with the understanding that, upon
their ceasing to retain the confidence of the popular branch of the [colonial] legislature, they
must resign office . . . The system is designed to extend to distant parts of the Empire the practical
benefits of a parliamentary system similar to that which exists in the parent state and thus, to
render political constitutions in the Colonies, so far as possible, to the very image and transcript
of those of Great Britain.17
This new authority validated the settler communities increasing perception of their
constitutional distinctiveness, one that was apart from Westminster whilst still under
Crown sovereignty. Political life in the loyalist colonies in the period between loss of the
thirteen and the Canadian disturbances that sparked the Durham Report (1837) had
shown that this perception, and action upon it, would occur irrespective of imperial
endorsement. In that period the imperial mood towards settler populism and clamour
for greater autonomy in loyalist colonies had not been accommodating. The Crown
colony with the Governor acting upon the advice of non-elective executive and legisla-
tive councils was the more preferred model of colonial governance. It gave settler
communities much less power than that which most of their antecedent counterparts
had held in the constitutions of the thirteen colonies. That imperial grip could not last
once the colonial economies became viable and more prosperous. It began to ease in
the early Victorian period, with responsible government an important outcome. The
contrivance of responsible government was effected without the aid of Parliament, as
Herman Merivale boasted (1861).18 Its purpose was to ensure that this formation of
constitutional identity occurred in a manner sympathetic to imperial interests. It was
not founded upon any imperial consciousness of colonial nationhood as some
predestined condition but, as always in British imperial history, a pragmatic response
17
Parliamentary Government in the British Colonies (2nd edn), London: Longmans, Green & Co, 1894) 52.
18
Lectures on Colonization (183941, reprinted edition with appendices, London: Longmans, Green,
1861), appendix to lecture xxii, 636.
to the actual state of things.19 As the settler-polity clawed more power from London
and gnawed at the imperial apron string, its appetite grew. By a series of bites, most
of them coming from the hubbub of local politics rather than any systemic proto-
national design, each colony inched at its own pace into an altered constitutional
identity and relation with London. Depiction of that nationhood as predestined was
the invention of the Whig historiography of Empire and nationalist myth-making of
the early twentieth century.
Unsurprisingly the visions of constitutional identity that emerged in the British
settings of the late nineteenth century were of an individualist and Anglocentric hue.
Once the pacification of the aboriginal peoples had been accomplished towards the end
of that century, colonial authorities were in a position to apply it with a vengeance. It was
a vision sealed in blood and set in law, as the tardy admission of South Africa to the club
at the beginning of the century demonstrated. This process did not accommodate
cultural or legal diversity. The Boer War, like the Maori Wars and Riel Rebellion, had
been a testament to that intolerance of alternative sites of political authority.
James Tully has called the tendency towards a centralizing and absolute model of
sovereignty the Empire of Uniformity.20 This Empire has a disposition towards
homogenizing constitutional identity into a monologic or single-voiced sovereign,
ruling over a culturally undifferentiated polity. This is certainly a good way of describing
the misery-ridden experience of aboriginal peoples in the North America and
Australasian jurisdictions from the late nineteenth century. Each jurisdiction, highly con-
scious of its sovereign self and not thinking of its relations with aboriginal peoples in any
way other than as an aspect of that sovereignty, imposed its own Empire of Uniformity.
Exercising their legislative authority, the colonial and American Leviathans became dis-
tinct Empires of Uniformity. One Empirethe British onemight have been in the
process of dissolving at the end of the nineteenth century (and then, for the most part, in
an unwitting manner). But as it expired a series of others were spawning. The manner in
which they treated their aboriginal peoples at this time was as much a reflection of how
they saw themselves as the tribes. Their sense of self was projected onto aboriginal culture.
If that proto-nationalism was an internal (frequently turbulent) and narcissistic
process that did not admit aboriginal peoples, then the same could not be said of other
areas of British imperialism where settlement was not such a crucial part of the design.
At the same time late in the nineteenth century as the Empires of Uniformity were
squeezing aboriginal peoples in North America and Australasia, the policy of indirect
rule was making a comeback in India and being applied in Africa (except the southern
parts). As used by the British in Asia and Africa, indirect rule recognized the authority
of native chiefs and enabled the customary system to retain an internal integrity
(although even there the tendency of imperial officials to interfere with and anglicize
19
There were a variety of attitudes in Britain towards the constitutional position of colonies in the
century after American Independence, ranging from Cobdenite free-trade separatism to total (unionist)
integrationism: CA Bodelsen, The English Attitude to the Colonies from the Loss of the First Empire Till
1869 in Studies in Mid-Victorian Imperialism (London: Heinemann, 1960) 1175.
20
In Strange Multiplicity Tully does not give this Empire a historical location other than to see it as a
powerful tendency in the jurisdictions of the common law diaspora with an aboriginal population.
the aboriginal laws was irresistible). In some parts of the globe the agents of British
imperialism, surrounded by an indigenous population, sought to maintain and
manoeuvre through the customary bond rather than smash it. Dissolving the indigenous
polity was only an option where the settlers had the physical as well as their own sense
of intellectual superiority, and, crucially, needed tribal land for settlement.
3. The trusteeship principle in British imperial and colonial

practice at the end of the eighteenth century
(a) The Crown as guardian
It was not the situation of the North American tribes in the last quarter of the
eighteenth century that first pressed the issue of the juridical character of British relations
with non-Christian peoples under its dominion. Rather it was the position of the
native people under the rule of the East India Company and the conduct of its agent,
the formidable Warren Hastings. Edmund Burke spoke eloquently before Parliament
in December 1783 on the East India Bill and Britains obligations as the possessor of
sovereign power over other peoples:21
all political power which is set over men, and . . . all privilege claimed . . . in exclusion of them,
being wholly artificial, and . . . a derogation from the natural equality of mankind at large, ought
to be some way or other exercised to their benefit. If this is true with regard to every species of
political dominion, and every description of commercial privilege . . . then such rights or
privileges, or whatever else you choose to call them, are all in the strictest sense a trust; and it is of
the very essence of every trust to be rendered accountable; and even totally to cease; when it
substantially varies from the purpose for which alone it could have a lawful existence.
Burke thought that the working of this trust required the British to refrain from
shaking ancient establishments. He projected onto India his deep-seated attachment
to the common law as the heart pulse of the English community. For him private
property recognized and derived from the law was at the heart of any enduring social
order. To ensure India was justly ruled, property had to be secured. And so he execrated
Warren Hastings and his English conquerors. Animated with all the avarice of age and
all the impetuosity of youth, he continued, they roll in one after another, wave after
wave; and there is nothing before the eyes of the natives but an endless, hopeless
prospect of new flights of birds of prey and passage.22 In 1776 Burkes friend, Philip
Francis, a member of the Supreme Council of Bombay in the 1770s, drew up the first
comprehensive plan for a rule of property in Bengal.23 Cornwallis incorporated this
into his Regulations (1793) which have been described as the institutional structure of
the Whig vision24 of law, property, liberty of the individual and education in Western
knowledge. In keeping both with the jockeying then still prevailing on the question of
Crown sovereignty and the common laws own principle of the continuity of lex loci,
the Regulations sought to reform rather than replace the native laws. So also began
the Indian peoples experience of codification and adaptation of their customary law.
21
Text in PJ Marshall (ed), The Speeches of the Right Hon. Edmund Burke, vol V, India: Madras and Bengal,
22
17741785 (Oxford: Oxford University Press, 1981) 385. Ibid 402.
23 24
Metcalf, Ideologies of the Raj, 20. Ibid 21.
This was a distinctly hybridizing phenomenon, one that was signified most by
Macaulays proposals finally enacted in the 1860s.
The Cornwallis period in India set the model for the governance of native peoples in
the approaching century. This was a model based upon the applicability of Englands
own historical experience to these people as signified (and glorified) by the common law,
coupled with the new liberal science of social engineering by legislation. At the close of
the eighteenth century, Bentham had berated common law method as nonsense on
stilts whilst Burke and Blackstone had stoutly defended it. However, in colonies
occupied by non-Christian people common law thinking and the science of legislation,
portrayed in England as antagonistic, melded much more happily. The common law set
out the political forms and liberal constitutional principles to which native peoples
should (in British eyes) aspire. As the nineteenth century progressed, there came a
greater willingness to pass legislation to dilute and transform the nativism that impeded
that result. In this sphere, common law constitutionalism and Benthamite, liberal
programmes of codification and transformation of customary law worked together. Law
became a conscious tool of social and cultural engineering to anglicize the native.
The notion of a special guardianship vested in the Crown (as representative of the
British state) emerged from that Indian context. From then on, imperial officials
believed that governmental power was to be exercised as to protect and guard the non-
Christian people until such time as they could achieve full political equality with the
Crowns natural-born subjects. In the meanwhile, until the Whig dream (enfranchised,
property-owing individuals transformed by education and Christianity) became
reality, these vulnerable people were under a special species of Crown protection or
guardianship. Crown sovereignty over non-Christian peoples thus entailed a relation
of protection. What this notion did not clarifyat least as it was first articulated late in
the eighteenth century and early in the nextwas the extent to which that left juridical
room for the native polities and custom.
This was the starting pointthe notion of Crown guardianshipfrom which legal
doctrine in a modernist sense of a distinct corpus of principles and rules began to develop.
Aboriginal peoples were regarded as being subjects in a special relationship with the
Crown. So far as their individual rights were concernedthat is their person and
individual property (including contractual rights)each native was considered to hold
the same rights as ordinary subjects, although even on that question officials were by no
means consistent or certain. Notionally the aboriginal natives liberty of person was the
same as that of a white subject but in reality it was frequently treated as far more expend-
able. Through most of the nineteenth century, however, those rights of the individual
were not the type that these people, organized tribally and unversed in or averse to
English ways and manner of thought, were minded to believe and disposed to exercise.
For the most part a sense of individual rights did not animate or excite the tribal persons
consciousness or behaviour. Instead they asserted collective rights linked to their
aboriginality, in particular rights associated with the governing and continuing authority
of their traditional polities and collective ownership of land. Once British practice was
sure that the Crown held sovereignty over these people and as British rule over them itself
consolidated, the willingness to recognize the status de jure of those polities diminished
considerably. British practice recognized that aboriginal polities had the capacity to make
a cession of sovereignty or jurisdiction and land title to the Crown but that once this had
been done those polities held no legal status. Recognition of group status was a means
towards achieving its legal disappearance or getting its land. The Crowns dealings with
aboriginal peoples were matters entirely of non-justiciable prerogative.
For the British this denial of aboriginal legal capacity meant not so much a denial of
those rights as a means of ensuring them. It placed the duty to protect these special
subjects upon the Crown and its leading officer in the colony, the Governor, and the
Protectors (in Canada, called superintendents) reporting to him directly. This duty was
embodied in the well-known terminology of those relations uttered on prairie, and in
long-house, marae and kraal, describing Victoria as the Great White Mother: the
Crown positioned itself between settler and tribe, and its laws, administered through
its officer the Governor, would protect the rights of its aboriginal subjects.
For a nearly a century, from the time of the Royal Proclamation (1763) to the
mid-Victorian period, the control of native policy was a matter which British officials
were unhappy to entrust to the colonists.25 The Report from the Select Committee on
Aborigines (1837) made this recommendation:26
The protection of the Aborigines should be considered as a duty peculiarly belonging and
appropriate to the Executive Government, as administered either in this country or by the
Governors of the respective Colonies. This is not a trust which could conveniently be confided to
the local Legislatures. In proportion as those bodies are qualified for the right discharge of their
proper functions, they will be unfit for the performance of this office. For a local Legislature, if
properly constituted, should partake largely in the interests, and represent the feelings or the set-
tled opinions of the great mass of the people for whom they act. But the settlers in almost every
Colony, having either disputes to adjust with the native tribes, or claims to urge against them, the
representative body is virtually a party, and therefore ought not to be the judge in such controver-
sies . . . . Whatever may be the legislative system of any Colony, we therefore advise that, as far as
possible, the Aborigines be withdrawn from its control. In the formation of any new colonial con-
stitution . . . we think that the initiative for all enactments affecting the Aborigines should be
vested in the officer administering the Government; that no such law should take effect until it has
been sanctioned by the Queen . . . and that the Governor of each Colony should be invested by
Her Majesty, so far as the Royal Prerogative should be adequate to the purpose, with the authority
for the decision of all questions affecting the interests of the native tribes.
In fact that recommendation accurately described official practice of the time. In his
Lectures on Colonisation (1841) Herman Merivale, soon to become James Stephens
successor in the Colonial Office, explained the principle of metropolitan control
through the Governor. The protection of natives should in all cases be withdrawn
altogether from the colonial legislature, and intrusted to the central executive. This
was, he added, a principle in which . . . even the most zealous friends of colonial
freedom must acquiesce.27
The general history of British imperial policy towards aboriginal peoples in its
colonies for nearly a century after the victory at Quebec was very much a story of that
25
See Andrew Porter, Trusteeship, Anti-Slavery and Humanitarianism in Oxford History of the British
Empire, III [The Nineteenth Century], 198 esp 212213.
26
Report from the Select Committee on Aborigines (British Settlements), GBPP 1837, # 425, 77.
27
Lectures on Colonisation (reprint edition, Oxford: Oxford University Press, 1928) 495.
centralized control as conducted through the Colonial Office (and its influential
Under-Secretaries Stephen and Merivale) and its Governors. However by the middle of
the nineteenth century the (above all else) revenue-conscious metropolitan authorities
acknowledged that their efforts to control native policy centrally had failed and handed
jurisdiction to local legislatures.
The Select Committee on Aborigines (1837) had recommended that treaties with
tribes already under British sovereignty should not be concluded. This was a way of
saying that the British should not adopt a manner of relations in its colonies that
admitted the quasi-sovereignty of those traditional polities.28 It encouraged a sense of
political distinctiveness that did not square with tribe members status as subjects of the
Crown. This was advice that came too late in the day for Upper Canada where treaty
relations for the cession of land had been practised since the beginning of the century.
By then this pattern was too established to discontinue. The form of this treaty-making
continued what struck Victorian eyes as an ambivalence over the nature of tribal
sovereignty by seeming to treat what had come to be regarded as a real estate transaction
as though it were a sovereign-to-sovereign transaction. As the Select Committee
adverted in its recommendation, this was a fiction unsupportable by common law rules
of Crown sovereignty. The Committee wanted to stem its use, believing, rightly, that it
misled native people. Likewise in the East Indiesalthough the Committee was not
concerned with this regionwhere a pattern of treaty-making had long been practised
and British relations with the native polities so complex that no other model would
have been feasible. British practice in southern Africa at this time was also incompatible
with the Committees recommendation, as it recognized in recommending strict
subscription to Lord Glenelgs treaty-making regulations:29 treaty-making was too
established in British practice to be discontinued.
There was, then, an unwillingness to recognize the legal status of the traditional
polities after the acquisition of Crown sovereignty that did not square with the
realities of colonial transactions with these polities. This disjuncture between the
legal positionthe technical non-existence of the tribal polityand the actual
onea pattern of sustained relations with itcontrasted with the approach taken
by the American Supreme Court during the early nineteenth century. The American
Supreme Court recognized the residual sovereignty of the domestic dependent
tribal nations. However by the end of the nineteenth century the American and
British-settler jurisdictions had reached a similar constitutional result but by
separate intellectual means. The outcome was the complete subordination of
aboriginal polities to the settler-states legislative authority. By the late nineteenth
century the Hobbesian belief in an absolute sovereign power had hardened into rigid
doctrine.
The British version was especially unaccommodating and inflexible, its non-pluralistic
notion of sovereignty being encouraged by the condition of British national and
28
The Treaty of Waitangi concluded with the Maori chiefs a short while after the Select Committees
Report is sometime regarded as contradicting this Report, but this recommendation concerned British
colonies rather than the means of British acquisition of sovereignty. The Treaty of Waitangi was a treaty
ceding sovereignty, not land (the British North American model).
29
Report of Select Committee on Aborigines (British Settlements), GBPP 1837, # 425, 8182.
imperial politics of the nineteenth century. For common lawyers, we will soon see
(for lawyers at least), that notion of an Empire of Uniformity was shaped from the
teachings of the Victorian jurist John Austin by his apostle Albert Venn Dicey. It was
also grounded, however, in a strong belief that the Crowns conduct and exercise of its
guardianship role over its aboriginal subjects was an expression of this liberality of
treatment grounded in law. The influential Under-Secretary of the Colonial Office,
James Stephen, was scornful of the American doctrine of discovery and residual
sovereignty. He saw this as a denial rather than facilitation of right. He regarded the
Marshall Courts notion of an assumption of Crown sovereignty by discovery as a
means of refusing American Indians the liberality of treatment and rights that aborig-
inal peoples in North America and (prospectively) New Zealand received through the
Crown as its specially protected subjects. He said:30
Whatever may be the ground occupied by international jurists they never forget the policy and
interests of their own Country. Their business is to give to rapacity and injustice, the most
decorous veil which legal ingenuity can weave. Selden, in the interest of England maintained the
doctrine of what was called mare clausum. Vattel in the interest of Holland laid down the
principle of open fisheries. Mr Marshall great as he was, was still an American, and adjudicated
against the rights of Indians. All such law is good, just as long as there is power to enforce it, and
no longer.
The rejection by the Select Committee on Aborigines of treaty-making with the Indian
nations already under Crown sovereignty endorsed that view. In the Committees eyes
the proper recognition of the rights of aboriginal peoples came through the Crowns
guardianship of its aboriginal subjects rather than the decorous veil of a pretended,
retained tribal sovereignty. It was precisely because aboriginal peoples were regarded as
subjects of the Crown that they had rights and were in a position, once their tribalism
was shed, to enjoy the full political and constitutional advantages of that status. The
question then became one of the extent to which the British criminal law would be
enforced strictly, moderately, or laxly over them.31 In that regard the discretion of the
Governor was crucial.
The denial of juridical status to the tribe extended also during the nineteenth century
to individuals in as much as colonial courts and officials refused to recognize any person
as holding rights that were aboriginal in character. Typically, such tribally-derived
rightsthose that today would be described as aboriginalfell to be protected through
the office of a Protector. Essentially these Protectors exercised the duties delegated from
a busy Governor unable to provide the coverage of everyday protection that colonial con-
ditions were requiring as settlers disrupted aboriginal peoples through such enduring and
recurrent issues as stock-trespassing and squatting. The practice went back to colonial
times32 before the unifying of aboriginal policy in the Royal Proclamation, which,
anyway, had maintained that guardianship system through the northern and southern
superintendency districts. In the early Victorian period aboriginal protectorates were
30
James Stephen, Minute to Vernon Smith, 28 July 1839 in CO 209/4: 343344.
31
Damen Ward, Invoking the law: law, order and settler politics in South Australia and New Zealand,
c. 18341845 paper presented to the New Zealand Historical Association, 2001.
32
Wendy B St Jean, Inventing Guardianship: The Mohegan Indians and their Protectors (1999) 72
New England Q 362387 at 363364.
a feature of British colonial practice in Australia,33 New Zealand,34 British Guiana35 and
Canada (where they had by then nearly a century-old pedigree and were still designated
superintendent). The use of a Protector, or person empowered legally to represent and
protect the rights of aboriginal subjects, was a corollary of the Imperial authorities refusal
to give colonial legislatures jurisdiction in this area.
These Protectors, like Governors, often found themselves caught between the
proverbial rock and a hard place acting as intermediaries between aboriginals and settlers.
George Clarke, the New Zealand Protector, spoke (1844) of the inadequacy of having
five Protectors in the recently annexed colony. He commented icily on the very
anomalous position in which his team was placed by the varied and contradictory
nature of their duties, sometime employed as interpreters and protectors in the Land
Commissioners and police courts, sometimes seeking compensation [from Maori] for
injury inflicted on European property.36 The inability of Maori to bring proceedings on
their tribal land rights put Protectors in a corner. They (the Protectors) were agents to
inform the natives of their position as British subjects, amenable to British law, and yet
are not prepared to point to a court which will take cognizance of and redress all their
varied grievances, or give the poor bewildered native any directions for his conduct.37
Clarke asked at least that protectors not be required to act as interpreters in transactions,
calling for definite instructions . . . in which the apparent contrarieties may be avoided,
and I be placed in a position to support the interests, liberties and properties of Her
Majestys aboriginal subjects to the fullest extent.38 His plea was not a new one, indeed it
was typical of the period before the colonies acquired jurisdiction. Officers in the field
like the Protectors and Canadian superintendents copped flak from both sides, and were
frequently required to arrive at some accommodation based upon their own assessment
of the aboriginal groups best interests in the face of pressure from the settler quarter.
It will be seen that the Protection regimes survived the transmission of legislative
jurisdiction to the colonies over native policy, although thence they took distinct,
localised formats in the self-governing dominions. These re-oriented protection
regimes changed to reflect local aims and interests rather than the vague intermediary
ideals of a distant though well-meaning White Mother. However, in the period
before and even for some while after the erection of those special statutory regimes
for the management of aboriginal affairs, all jurisdictions kept to the model of
a non-justiciable Crown trust exercised through the executive.
(b) The Colonial Laws Validity Act 1865

Although the Governor exercised this wide discretionary power in the administration of
native policy, it must not be thought that the legal culture within which he operated
before the onset of responsible government was a virtual tabula rasa. His discretionary
33
Report of the Select Committee on Aborigines (British Settlements) 82; Glenelg to Governor Gipps,
New South Wales, 31 January 1838: House of Commons GBPP 1839, vol 34, no 2, 4.
34
Russell to Governor Hobson, New Zealand, 9 December 1840: CO 209/8: 460504.
35
Sir B DUrban, Demerara, to Under-Secretary Horton, 16 May 1827 in Parliamentary Papers 1834,
no 617, at 168171; George Bagot to Major-General Sir B DUrban, Essequibo, 20 September 1831,
ibid 184, esp 186187.
36
George Clarke, Chief Protectors Office, half-yearly report 30 June 1843. Text in Appendices to Report
37
from the Select Committee on New Zealand (1844), Sess 1844, no 556, vol XIII, appendix 9. Ibid.
38
Ibid.
powers were certainly unreviewable in the modern sense of being justiciable before a
court. As the sole source of title to land in the colony, for example, it was up to him to
determine when or if the native title had been extinguished and a Crown patent
might issue. In consequence the settlers, inevitably querulous, and tribal chiefs, also
argumentative, regularly petitioned the Governor as well as the Colonial Office and
Secretaries of State on land matters. There were structures and procedures applied to the
operation of the discretion and these could be found in the formal instructions under the
sign manual or informal instructions sent by despatch from London. Although the land-
grant power was subject to close specification in the constituent instruments erecting the
colonial offices, the management of native affairs was generally left to the Governor and
the counsel and guidance of despatch. The purpose of land-titles procedures was to regu-
larize and ensure even-handed administration of the law in what was the most sensitive
issue of colonial life. These procedures were set out publicly to make the process plain to
a group that was never slow to complain. The purpose was not to set rigid legal standards
by which to render the Governor accountable in the colonial or other courts so much as
to make sure the settlers were clear of the position.
During the nineteenth centurywith one major exception that proved the prover-
bial rulethere was never any question of the Governor being brought before the
courts for failure to follow his instructions, formal or informal. His discretion was not
generally regarded as encompassed by rules or requirements that could be enforced
through the courts (especially as the Governor himself played a central role in the
colonial legal system). Settler society was disputatious, particularly where land was
concerned. Had there been such a pervasive idea of legal obligation seeing the
Governor as amenable to court jurisdiction the stroppy settlers would undoubtedly
have availed themselves. Governors exercised equitable jurisdiction in Council, a
feature of colonial legal process underlining their status as the source rather than sub-
ject of justice. Instead disgruntled colonial inhabitants worked through his authority,
by petitioning him, or going over his head to London. A Governor who failed to follow
his instructions risked disallowance and recall rather than judicial process. To the
extent issues arose as to the legal liability of the Governor, they were highly occasional
and centred on his criminal39and tortious40 liability or subscription to statutory
powers.41 In the century after the American Revolution, no jurisprudence of any
remark developed about gubernatorial vires. That was just not the way of thinking,
39
The Act 11 Will III cap 12 provided that any Governor, Lieutenant-Governor, Deputy-Governor or
Commander-in-Chief who shall be guilty of oppressing any of His Majestys subjects beyond the seas within
their respective governments or commands or shall be guilty of any other crime or offence contrary to the
laws of this realm . . . should be tried in England. The Criminal Jurisdiction Act 1802 (42 Geo III cap 85)
modified that statute and in R v Shawe (1816) 5 M & S 403 it was held that neither of those statutes applied
to a charge of felony, which would have to be tried by the local courts. Also R v Picton (1812) 30 St Tr 225
and R v Eyre (1868) LR 3 QB 487.
40
In Mostyn v Fabrigas (1775) 1 Cowp 161, 172, 173, an action for trespass and false imprisonment,
Lord Mansfield said that, locally and during his government, no civil or criminal action would lie against a
Governor, because upon process he would be subject to imprisonment. In Hill v Bigge (1841) 3 Moo PC
465 this dictum was not followed (on a debt incurred before appointment) but Lord Brougham observed
that a Governor can be liable to action without his person being liable to execution, suggesting an immunity
from execution. This was followed in Musgrave v Pulido (1879) 5 App Cas 102 (action in trespass). Also
41
Glynn v Houston (1841) 2 Man & G 337. Raine and Ramsay v Piper [1825] NSWSC 33.
legal or otherwise, in that time. Colonial Governors knew they had a broad and elastic
discretion enabling them to exercise a wide latitude of authority.42 Some were very
skilled at it, others less effective. But all knew they wielded considerable constitutional
authority.
In Cameron v Kyte (1835) the court said:43
But if the Governor be an officer, merely with a limited authority from the Crown, his assumption
of an act of sovereign power, out of the limits of the authority so given him, would be purely void, and
the Courts of the Colony over which he presided could not give it any legal effect. We think that
the office of Governor is of the latter description, for no authority or dictum had been cited
before us to show that a Governor can be considered as having delegation of the whole Royal
power in any colony, as between him and the subject, when it is not expressly given by his
commission.
The key phrase has been italicized. It indicated that colonial courts should refuse to
give effect to the usurpation by the Governor of sovereign powers outside those
expressly given him by commission. What, then, would have comprised an assumption
of an act of sovereign power, out of the limits of the authority vested in the Governor
as to justify a colonial court intervening?
When Governors assumed powers of legislation, taxation, and the erection of
courts44 in colonies where the authority itself could not be exercised in the colony or
else it had not been conferred upon them, they arrogated sovereign powers in the
unlawful manner described in Cameron v Kyte. Two examples of that in the first half of
the nineteenth century were the regimes of Governor Macquarie in New South Wales
(180921) and Governor Douglas on Vancouver Island (184964). In the colony of
New South Wales before 1823 when the government was put on a statutory footing,
Governors (Macquarie especially) issued laws and taxed the inhabitantsthe free
settlers includedwithout the authority of an imperial statute. On Vancouver Island,
founded as a colony in 1849, Governor Douglas deferred establishment of a represen-
tative assembly as required by royal warrant and through the early 1850s ruled by
gubernatorial edict.45 These were both settled colonies where by the common law
principles accredited to Lord Mansfield in Campbell v Hall (1774) the Crown lacked
any general prerogative legislative power and where the form of government it might
erect by exercise of the constituent power was limited to a representative assembly.
42
See Peter Burroughs, Imperial Institutions and the Government of Empire in Oxford History of the
British Empire, III [The Nineteenth Century], 170, 176177.
43
(1835) 3 Knapp 332, 344 (emphasis added).
44
For example Enid Campbell, The Royal Prerogative to Create Colonial Courts: a Study of the
Constitutional Foundations of the Judicial System in New South Wales, 17881823 (1964) 4 Sydney
L Rev 343.
45
James Douglas assumed governmental powers over Vancouver Island through a Governor and council,
explaining that it was not considered expedient to enter upon the subject of legislation nor to call General
Assemblies of the freeholders until the population increases, and there be a sufficient number of persons of
education and intelligence in the colony. . . (Douglas to Sir John Pakington, 11 November 1852, CO
305/3:147). Sir George Grey, Secretary of State, indicated that Douglas and his council lacked legislative
powers, and though acknowledging the inexpediency of a full assembly recommended Douglas have an elec-
tive council to legislate: Henry Labouchre, Secretary of State, to Douglas, 28 February 1856 in CO 410/1:
no 5 at 8289 and GBPP (1857), no 235, vol xxxviii, Sess 2, at 34.
Directing his ire at the penal colony, Jeremy Bentham had railed against that sort of
unlawful assumption by Governors of sovereign authority.46 In New South Wales the
assumption of a gubernatorial legislative power ostensibly under the prerogative was
tested in local courts in 1822. When the matter finally reached London for scrutiny,
James Stephen thought likewise.47 This determination underlined an earlier local
ruling (1818), one subsequently endorsed by the Law Officers, that Governor
Macquarie lacked any taxing power without the support of imperial legislation.48
Others were less inclined towards the higher ground of constitutional principle and
thought that within defined limits the Governors assumption of legislative power was
quite proper.49 Imperial legislation cured these defects in New South Wales (1823)50
and ensured they did not recur in the new mainland colony of British Columbia
(1858).51
These were examples of a Governor assuming important prerogative powers that at
common law the Crown could not exercise in the colony much less delegate (which it
did not) to its representative. Where, however, the Governor was acting upon a power
that was plainly vested in the Crown and delegated to him there was little contempla-
tion of testing the exercise of such powers in the courts.
The Governor Eyre controversy showed the unlikelihood of a Governor being
impleaded before a court on matters related to exercise of delegated prerogative powers,
particularly those with racial overtones and/or related to the security of the colony.
During a rebellion by former slaves in Jamaica in 1865, Governor Eyre declared martial
law and enforced a regime so repressive that over 400 black people died. The case
became a cause clbre in England during the late 1860s with vocal support for and
against Eyre. However Eyre was never tried despite his opponents call, a result showing
the extent to which official conduct in the colonies would have to reach before judicial
proceedings against a Governor could be contemplated.52 An English court upheld the
Act of indemnity passed by the Jamaican legislature to guarantee Eyres immunity.53 At
this same time similar accusations were also being directed against Governor George
Grey for his allegedly inhumane treatment of Maori in the New Zealand Wars. These
allegations had been sent directly to the Secretary of State from an Englishman who
relied upon reports from New Zealand. Greys response was typically splenetic.
46
He had done so with the New South Wales example in mind in A Plea for the Constitution of New South
47
Wales (1803)extracts in Historical Records of Australia, ser iv, I, 883900. Ibid 803804.
48
Field to Macquarie, 24 February 1818, ibid 322323. Crown Law Officers Shepherd and Gifford,
opinion, ibid 330.
49
Notably Bigge in his Report of the Commissioner of Enquiry on the Judicial Establishments of New South
Wales and Van Diemans Land (1823). Bigges greater objections concerned the absence of safeguards against
gubernatorial regulations repugnant to English law and the disordered arrangements for publication of
legislation. Nonetheless he subjected the Macquarie regime to heavy criticismfor a critique of Bigges
Report and a qualified defence of the Governor see JM Bennett, The Day of RetributionCommissioner
Bigges Inquiries in Colonial New South Wales (1971) 15 American J of Legal History 85.
50
4 Geo IV cap 96, section 28 (1823) replaced by 9 Geo IV cap 83, section 27 (1828). The classic account
remains Enid Campbell, Prerogative Rule in New South Wales, 17881823 (1964) 50 Journal of the Royal
51
Australian Historical Society 161. 21 & 22 Vict cap 99, section 2.
52
Gad Heuman, The British West Indies in A Porter (ed), The Oxford History of the British Empire
The Nineteenth Century (Oxford, 5 vols: Oxford University Press, 1999) vol 4, 470 at 486487.
53
Phillips v Eyre (1870) LR 6 QB 1.
But once calmed and the allegations withdrawn, he objected to the receipt by imperial
authorities of complaints against the Governor in breach of the colonial service rule
that they were to be transmitted through the Governor himself. The outcome was
regulations setting this rule out more clearly.54
The Eyre episode was a particularly controversial and extreme example of a constant
theme attending the role of Governors in British colonial history after the Revolution
and before the onset of responsible government. Colonists frequently complained of
these officials excessive conduct, mostly to little or no avail, sometimes with good
grounds. Indeed, some Governors showed a cruel talent for turning the legal system
against those who complained about them.55 Such conduct, painted afterwards in the
contrast of black and white, licensed the nationalist Whig historiography of the Crown
colony period as a dark age of pre-democratic, autocratic rule. This retrospection
downplayed or ignored the subtleties of the political culture and personalities
surrounding these important figures.56 For the most part in the period before and
accompanying the onset of responsible government, the settler community of a British
colony did not challenge so much as work through the authority of the Governor. This
was so inscribed in the rhythm and patterns of colonial politics that when this
understanding was directly challenged in the early 1860s the response in London and
the colonies was almost apoplectic. Imperial legislation in the form of the Colonial
Laws Validity Act 1865 comprehensively set back in place what had been understood
as the status quo ante.
In the courts of the colony of South Australia during the early 1860s one Justice
Boothby had been taking a very wide view57 of the repugnancy provision in the imperial
legislation for the colony.58 This rule prevented the enactment by the local assembly of
laws repugnant to the laws of England, a phrase and notion that went back as far as
the medieval charters for boroughs, guilds, and merchants in Europe as well as the
colonies of the New World. Australian politicians were highly distressed by Boothbys
unexpectedly wide notion of repugnancy, which saw him striking down all manner of
54
The incident is reported in Todd, Parliamentary Government in the British Colonies (1894) 134136.
55
See for example Barry Cahill, Sedition in Nova Scotia: R v Howe and the Contested Legality of
Seditious Libel (2002) 51 University of New Brunswick LJ 95, and Sedition in Nova Scotia: R v Wilkie
(1820) and the incontestable illegality of seditious libel before R v Howe (1835) (1994) 17 Dalhousie
LJ 458. Another example was the hounding of Captain Robison, who had disapproved of Governor
Darlings regime in New South Wales in the late 1820s, which ended with his imprisonment in London:
CH Currey, Sir Francis Forbes: the First Chief Justice of New South Wales (Sydney: Angus and Robertson,
1968) 329331. This episode was connected with Darlings extremely hostile relations with his Chief
Justice, Francis Forbes.
56
There is an important contextual account in Mark Francis, Governors and Settlers where the author
analyses the political cultures and personalities of gubernatorial governance in settlement colonies of the
mid-nineteenth century.
57
Hutchinson v Leeworthy (1860), attacking the validity of Torrens Real Property Act (1858) introducing
a system of land registration which offended fundamental constitutional principles; Liebelt v Hunt (1861)
invalidating the Grand Jury Act 1852 for wrongly displacing the common law; McEllister v Fenn (1861)
invalidated the Real Property Act 1860 for not having been reserved as the Governors instructions required
and citing the impossibility of local legislation establishing the great object of indefeasibility of title; in
Payne v Dench (1863) (with the support of the majority of the court) and Dawes v Quarrel (1864) Boothby
held that the executive council could not act as court of appeal after the advent of responsible government
58
(South Australia Sessional Papers 1863 (HA) 100). 13 & 14 Vict cap 59.
local legislation. The colony was only just enjoying the constitutional blessings of
responsible government and this judicial intervention struck at the heart of its fresh
legislative power. If, they said, the repugnancy rule was understood in the sense of
conflict, either with the fundamental principles of the English Constitution, or with
Acts of Parliament affecting the Colonies, then it is easy for a Court to decide whether
in relation to any subject there is an Imperial Statute affecting the question which
prescribes a different rule from a Colonial Act; or whether essential principles have
been violated.59 Boothby, however, they chafed, defined it as any alteration of the law
of England which was either impolitic or unfair; the impolicy and unfairness being
determined according to the opinions of the individual Judge who may be called upon
to decide the question.60 In addition Boothby was striking down executive actions
and colonial legislation as being inconsistent with the Governors instructions.
Neither the Governor nor the colonial legislators were happy with his obdurate and
wilful stance.
Governor MacDonnell of South Australia was aghast that a judge might declare
colonial laws incurably void for no other reasons than that the Governor. . . had not
construed his Instructions or used his discretion . . . in the mode thought most correct
by the judge. Boothbys conduct startled him:
[T]hus I could scarcely have imagined that any one, much less a barrister and a judge, could have
declared our Customs Act invalid, because by it a duty of 10s per gallon is levied on French
brandy, whereas by the recent treaty with France Her Majesty merely stipulates to recommend
Her Parliament a duty of only 8s per gallon on brandies imported into the United States. The
learned judge even sees a casus belli in our levying such a duty (the same as in neighbouring
colonies) if we had a less sincere ally than the present Emperor of the French.
In the Governors estimation such illogical inferences on so simple a subject exhibit

such extraordinary ignorance.61 Small wonder that both Houses of the South
Australian assembly wanted rid of Boothby, who resisted stick (appearance before the
bar of both Houses) and carrot (a generous retirement package). Many considered him
a troublemaker upsetting the understood and settled dynamic of colonial affairs.
When, for example, his quirkiness saw him being overlooked for Chief Justice, he
testily informed the Colonial Office that the post did not exist.62 For all his insistence
upon the dignity of his office and his success in rallying some support from his brethren
and the (literally) odd politician,63 Boothbys chopping and changing and obstinacy
also had the attention-seeking air of the relentless egotist.64 However he had taken the
59
Report of the Select Committee of the Assembly of South Australia, South Australia Sessional Papers
60
1861 (HA) 154. Ibid.
61
All the quotations in this paragraph are from Sir Richard MacDonnell to the Duke of Newcastle, 25
September 1861, text in Correspondence between the Governor of South Australia and the Secretary of
State relative to Mr Justice Boothby in GBPP 1862 [3048] vol XXXVII, 21.
62
Letter to the Duke of Newcastle, 20 October 1861, reported ibid 97.
63
In Driffield v The Registrar General (1863) Boothby had the support of the Supreme Court on the
question of the colonial legislatures capacity to amend its constitution.
64
Roberts Wray, Commonwealth and Colonial Law, 396406, attempts a spirited latter-day defence of
Boothby and the enduring depiction of him as a troublemaker whose idiosyncracies worked like a cartload
of bricks in the proverbial millpond.
judicial oath. This ensured that colonial and imperial officials treaded carefully and, it
must be said, respectfully around his office whilst pillorying the man. Eventually, in
1867, his letters patent of appointment were revoked.65
Boothbys position had the potential to wreak havoc in the administration of
colonial laws at a time when the momentum of responsible government was growing.
The colonists were not slow to see that he was advocating an essentially American form
of judicial review, arrogating for colonial courts the authority to strike down the
exercise of constitutional authority vested in the executive and legislature. His conduct
struck at both executive discretion and legislative paramountcy. Boothby, the Select
Committee of the (South Australia) Legislative Council complained (1861), was
trying to emulate the American Supreme Court. They invoked the views of a popular
Victorian commentator, Tremenheere, on the American Supreme Court to reject this
abhorrent challenge to the principles of the English Constitution:66
This body, therefore, is invested with an authority which cannot fail to appear to English eyes
to be of a very extraordinary character, viz., that of declaring void and of none effect an Act
solemnly passed by the Legislature, should that Act be, in their opinion, at variance with the
Constitution. Our system of Government, which is founded partly on usage and partly on
Acts of Parliament, neither knows, nor recognizes, nor would tolerate any authority extraneous
to that of the Legislature, when the will of the Legislature has once been declared by a
formal Act.67
Even the dissentient on the Committee felt obliged to dissociate the Boothby view
from the American.
The Law Officers of the Crown acknowledged that a jurisprudence of repugnancy
had not developed in the courts of the Empire. They accepted that there was a distinc-
tion between repugnancy to English law and mere differences from British practice
but did not provide a definition. In true common law style they said that courts would
know this when they saw it and that, anyway, it was unlikely a colonial legislature
would even enact repugnant laws. Repugnancy, they felt, was an extremity colonial
laws were unlikely to reach. The paucity of case law itself attested to that. In addition,
instructions were a matter between the Crown and the Governor and to be to the
latter, directory only.68
Ultimately Boothby put paid to any prospect of an elaborate jurisprudence in imperial
and colonial law of legislative and executive vires.69 The Colonial Laws Validity Act
1865 famously curbed any such possibility. The Act was retrospective70 and reaffirmed
65
Memorandum on the removal of colonial judges by Frederic Rogers (Colonial Under-Secretary),
September 1868, GBPP 1870 XLIX (139) at 437446.
66
Report of the Select Committee of the Legislative Council, upon Recent Decisions and Conduct of
Mr Justice Boothby, 27 August 1861, ibid 22, 23.
67
Hugh Seymour Tremenheere, The Constitution of the United States, Compared with Our Own (London:
John Murray, 1854) 248249. Tremenheeres account relied heavily on the Commentaries of Kent and
Story as well as St George Tuckers popular American edition of Blackstone.
68
GBPP 1862 XXXVII (3048) 180184.
69
I exclude from this the jurisprudence of the division of powers that emerged in Canada and later
Australia.
70
Colonial Laws Validity Act 1865, 28 & 29 Vict cap 63 (An Act to remove Doubts as to the Validity of
Colonial Laws), section 7.
the orthodoxy that Boothby had rocked. It passed through Parliament without
bother, so surely did it set the received position in law to remove Doubts. Section 2
reaffirmed (and somewhat extended71) the established rule that a colonial law would be
void if repugnant to any imperial statute extending to the colony. Section 3 provided
that a colonial law was not to be held void for repugnancy to English law except as
provided in section 2. Section 4 prevented a colonial law from being inoperative by
reason only of the Crowns instructions with reference to such laws of the subject thereof
unless in letters patent. The authority of colonial legislatures to establish courts was
confirmed (section 5) as also the power of representative legislatures to make constitu-
tional amendments (section 5). The Act thus was a charter of freedom for colonial
legislatures in that it banished the unthinkable spectre of judicial review of legislative
action. It confirmed the non-justiciable discretion of the Governor. It enabled the fled-
gling colonial assemblies to grow free from the type of judicial intervention that
Boothbys meddlesome antics had unexpectedly and briefly thrust into discreditable light.
In Musgrave v Pulido (1879) it was stressed that a Governor was not a Viceroy and
only held that authority derived from his commission and thereby expressly or
impliedly entrusted to him. Whilst he was protected from actions within the limits of
his commission, the like protection [could] not be extended to acts . . . wholly beyond
the authority confided to him.72 The case thus acknowledged the distinction between
a Governors breach of his commission under the Great Seal (which a court could strike
down) and breach of his instructions (which a court could not). If this suggested a
prospective jurisprudence of gubernatorial vires based on minute judicial attention to
the commission, it did not eventuate.73 For a start most commissions were highly
general and vague in their specification of gubernatorial power, making any boundary-
setting a slippery task for courts that were anyway still deferential to the prerogative.
Moreover responsible government itself checked that possibility. Governors had
moved from the status of potential despots to rubber stamps of the colonial Ministry
whose advice they were bound to follow.74 The very folk who once were apt to
challenge his authority were now his puppet-masters. Despite the ruffle made by
Boothby, throughout the nineteenth century impleading Governors remained an
implausible legal route.
4. Sovereignty and the American common law: the early republic and
Marshall Court judgments
The young American republics Indian policy was largely a continuation from the
British. As in the Canadas during the close of the eighteenth and early in the nineteenth
centuries, the orientation of Indian policy was initially military and strategic.
71
Roberts Wray, Commonwealth and Colonial Law, 397398. The Act extended the rule not only to
72
statutes but instruments passed under their authority. Musgrave v Pulido (1879) 5 App Cas 102.
73
Courts did not develop a jurisprudence of any remark although the question resurfaced in an academic
sense in the late 1960s just as (coincidentally?) the modern notion of judicial review of executive action was
developing in English law; see D Swinfen, The Legal Status of Royal Instructions to Colonial Governors
[1968] Juridical Rev 21.
74
Arthur Berriedale Keith, Responsible Government in the Dominions (2nd edn, Oxford: Clarendon Press,
1928) 9598.
Gradually, however, once the authority of the republic was established and as settlement
pushed westward, land became the focus of relations.
In August 1786 the Continental Congress approved an ordinance for the Indian
trade that proposed a system by which a superintendent oversaw Indian relations and
licensed trade and residence.75 Although never fully effective, the ordinance recognized
the tension already emerging between federal and state authority over the administration
of Indian policy76 and contemplated the system of the later non-intercourse statutes.
The ordinance provided for southern and northern districts, adapting elements of the
system of the Royal Proclamation (1763). It proposed a superintendent for each
district to carry out the instructions of Congress as well as requiring licences and bonds
to trade with the Indians. This was a response to the eager speculators and settlers
demand for land.77 A year later a Committee Report of the Southern Department
confirmed the problems being caused by state intervention.78 The American
Constitution adopted in 1787 gave Congress the responsibility of managing Indian
affairs, apparently excluding the states. However the residual authority of the states
under the Trade and Intercourse Acts was officially revoked in 1790 with the first
Nonintercourse Act.79 The Constitution allowed Congress to regulate commerce with
foreign Nations, and among the several States, and with the Indian Tribes.80 It also
excluded Indians not taxed from population counts.81 Finally, the Supremacy Clause
elevated all Treaties made, or shall be made as the highest law of the land.82 The first
Congress established a War Department in 1789 with a jurisdiction that included
Indian affairs,83 a responsibility that remained until the Interior Department was
established in 1849.84 A separate Bureau had been set up within the War Department
in 1824 without special Congressional authorization85 until 1832.86
Indian policy of the young republic continued themes and principles of British
practice embodied in the Royal Proclamation. The Northwest Ordinance of 1787
established the Northwest Territory and maintained the westward north-south boundary
line of Indian land in which the non-intercourse statutes (passed in 1790, 1796, and
1799 before the 1802 consolidation) forbade trade and settlement. The Ordinance
famously declared that the utmost good faith shall always be observed towards the
75
Journals of the Continental Congress, vol 31, 490493.
76
South Carolina had wanted to handle Indian affairs itself; however in drafting the Articles of
Confederation (July, 1776) James Wilson pointed out the Indians refusal to recognize any superior authority.
He believed that only the United States in Congress assembled could deal with the Indians: ibid vol 6,
10771079.
77
FP Prucha, American Indian Treaties: the history of a political anomaly (London: University of California
78
Press, 1994) 5254. Ibid, vol 33, 456459.
79
1 Stat 329 (1729). Some eastern states remained unable to deal with this loss of authority and in several
instances negotiated directly with the tribes for land, notably the state of New York (see Barbara Graymont,
New York State Indian Policy after the Revolution (1976) 57 New York History 438). Many of those were
not approved by the federal government and were regarded as unfair by the tribes. Those claims were main-
tained over many generations and vindicated in County of Oneida v Oneida Indian Nation 435 US 191
80
(1978). US Const Article I, 8, clause 3.
81 82
Ibid article I, 2, clause 3. Ibid article IV, clause 2.
83 84
1 Stat 49 (1789). 9 Stat 395 (1849).
85
F Prucha (ed), Documents of United States Indian Policy (2nd edn, London: Univserity of Nebraska
86
Press, 1990) 37. 4 Stat 564 (1832).
Indians, their lands and property shall never be taken from them without their consent;
and in their property, rights and liberty, they never shall be invaded or disturbed, unless
in just and lawful wars authorised by Congress.87 The Trade and Intercourse Act of
1802 consolidated the policy of the earlier, identically titled Congressional statutes.
The long-standing pre-Revolutionary rule remained, in that the Act outlawed the
purchase of land directly from any Indian, or nation, or tribe of Indians.88 Another
Trade and Intercourse Act of 1834 further consolidated the law89 and was passed
alongside a statute for the organization of a Department of Indian Affairs which set out
specific agencies and put the Indian service on a clearer footing.90 This Act also identi-
fied Indian country as comprising, first, all lands west of the Mississippi River, outside
the states of Louisiana and Missouri and the Territory of Arkansas; and secondly,
any lands east of the Mississippi, not within any state, the Indian title to which had
not been extinguished. That definition was repealed in 1874 by which time it had
become impossible to maintain the approach that had started a century before with the
Royal Proclamation (1763). Thereafter, as the Supreme Court explained in 1877,
Indian country simply meant land (such as reservations) subject to an unextinguished
original Indian title.91
During the late eighteenth century the constitution-building processes of the new
republic had treated Indians ambivalently, the proceedings of the Continental
Congress already revealing the duality that would characterize their constitutional
status in the next century. The tribes were treated simultaneously as independent
polities and as subjects of domestic (as opposed to diplomatic) practice. However,
treaty-making resumed, commencing with the Treaty of Fort Stanwix (1784) and
followed by the treaties of Fort McIntosh (1785) and Great Miami (1786).92 These
early treaties were ostensibly treaties of peace and alliance but they also contained
significant land cessions and in so doing set the tone for the long line of treaties that
followed. The defeat of the British and their Indian allies in 1812 removed all serious
threat of Indian military resistance east of the Mississippi River. The pressure on Indian
land was renewed with a vengeance. The republics victory unleashed a huge demand
for land, fuelled by the explosion of nationalism and frontier entrepreneurialism.
Treaties poured into Washington and were sent in batches for ratification by an eager
and compliant Senate. These treaties initiated the practice of reserving land for the
tribe, as well as the usual provision for presents and annuities and, in some, money for
the education of Indian youth.93
Early in the nineteenth century Thomas Jefferson advocated the civilization of the
Indian, but he also raised the possibility of removal if the Indian refused to leave tribal
life to move into a history of civilized yeomanry. He tended increasingly towards the
removal option as Indian resistance became increasingly apparent.94 This suggestion
87 88
Journals of the Continental Congress vol 32, 340341. 2 Stat 139, section 12 (1802).
89 90
4 Stat 729 (1834). 4 Stat 735 (1834).
91
Bates v Clark 95 US 204 (1877), 209. Also Wilkinson, American Indians, time, and the law 9091.
92 93
Prucha, American Indian Treaties 3854. Ibid 135144.
94
See generally Anthony Wallace, Jefferson and the Indians: The Tragic Fate of the First Americans
(Cambridge, Mass: Harvard University Press, 1999); Jeffersons evolving native policy, culminating in his
removalist disposition after the War of 1812: http://etext.lib.virginia.edu/jefferson/quotations/jeff1300. htm
(extracts from his speeches and correspondence).
was not new. The Congress of 178384 took the view that Indian support of the British
meant they had forfeited their right to possession of lands within the United States and
should retire to the Canadas or east of the Mississippi River. At that time the infant
republic had little by way of resources to put this policy into action. Publicly President
George Washington and Secretary for War Henry Knox recognized the right of the
Indians to their land. To dispossess them on any other principle, would be a gross vio-
lation of the fundamental laws of nature, and of that distributive justice which is the
glory of a nation.
By the 1820s and 30s the leading issue in Indian policy concerned the removal of
the eastern tribes, the Cherokee of Georgia in particular, to land beyond the western
boundary. President Monroe had proposed voluntary removal (1825),95 but as Indian
presence became more contentious, his successor, the populist Andrew Jackson, took a
more aggressive stance.96 President Jacksons relations with the Supreme Court were, to
say the least, uneasy97 and he had secured passage of the Removal Act (1830) by
Congress.98 In the end, not even the judgments of the Supreme Court could rescue the
Cherokee from the Trail of Tears, the decimation of their population and culture as
they were forced to trek hundreds of miles inland to a new, less hospitable home away
from their ancient lands. In the teeth of Jacksons determination, it was scant comfort
for the Cherokee that the court had set out what became the foundational legal principles
of federal Indian law. The ringing principles of the Northwest Ordinance had done
precious little for the Cherokee and the other nations expatriated during the removal
period of 183561. Removal beyond state boundary lines was often the prelude to the
admission of new states to the Union.99 The nationalist agenda prevailed easily over
honourable treatment of the tribes.
In two associated cases decided closely together, Cherokee Nation v Georgia (1831)
and Worcester v Georgia (1832), the Supreme Court under Chief Justice John Marshall
explained the legal status of the American Indian tribes of whom the states wanted
riddance. The cases concerned the attempt by the state of Georgia to assert jurisdiction
in Cherokee country through a series of draconian lawscompletely violative of existing
federal treaties.100 These laws were specifically intended to break the integrity of the
Cherokee and to open up their land for white settlement. The laws were also aimed at
preventing northern missionaries encouraging anti-state sentiments amongst the
95
Message of President Monroe on Indian Removal, 27 January 1825, in Prucha (ed), Documents, 39.
96
Secretary of War Eaton on Cherokee Removal, 18 April 1829, ibid 44.
97
See J Burke, The Cherokee Cases: A Study in Law, Politics and Morality (1969) 21 Stanford Law
Rev 500, and GE White, The Marshall Court and Cultural Change, 181535 (New York, 1988) ch 10, tit
Natural Law and Racial Minorities: The Courts Response to Slaves and Indians.
98
4 Stat 411 (1830) which gave the President power to set aside districts for the reception of such tribes
or nations of Indians as may choose to exchange the lands where they now reside, and removal there . . . [to]
forever secure and guaranty to them, and their heirs or successors, the country so exchanged with them . . ..
Removal was thus a voluntary process. It originated from Thomas Jefferson at the time of the Louisiana
Purchase: Shattuck and Norgen, Partial Justice, 39.
99
R Clinton, NJ Newton, and ME Price, American Indian law: cases and materials (3rd edn,
Charlottesville, Va: Michie Co, 1991) 146.
100
PT Shattuck and J Norgren, Partial Justice. Federal Indian Law in a Liberal Constitutional System
(New York: Berg, 1991) 39. Also GS Woodward, The Cherokees (Norman: University of Oklahoma Press,
1963) 158159.
Cherokee and so required any white entering Cherokee land to obtain a licence from
and make an oath of allegiance to the state.
Justices Baldwin and Johnson took the position in Cherokee Nation that the Indian
tribes lacked any status at all. In words that later became notorious, Justice Johnson
asked [m]ust every petty kraal of Indians designating themselves a tribe or nation, and
having a few hundred acres of land to hunt on exclusively, be recognised as a state?
Comparing the Cherokees to European states he wondered the applicability of the
epithet state to a people so low on the grade of organised society as our Indian
tribes.101 Justice Johnson proceeded to approve the approach taken by British courts
on the enforcement of treaty promises, using a phrase which fifty years later was to be
echoed (without acknowledgment) in colonial New Zealand. In the exercise of sovereign
right, he said, the sovereign is sole arbiter of his own justice and [t]he penalty of
wrong is war and subjugation.102
In Worcester Chief Justice Marshall found he could not evade the issue of tribal status
as he had recently done in Cherokee Nation. His judgment in this later case was soon
regarded as authoritative and became the cornerstone for federal American Indian law.
The Chief Justice concluded that the Cherokee Nation was a distinct community,
occupying its own territory, with boundaries accurately described, in which the laws of
Georgia can have no force, and which the citizens of Georgia have no right to enter but
with the assent of the Cherokees themselves or in conformity with treaties and with the
acts of Congress.103 This conclusion embodied what became the two central principles
of federal American Indian law. It recognized the distinct sovereign status of the Indian
tribes in Indian country (the first principle) but also carried the seeds of what would
become known as the plenary power of Congress104 (the second).
The history of European practice in relation to the New World portrayed the distinct
and sovereign status of the Indian tribes, the Chief Justice insisted. The doctrine of discov-
ery was a means by which the European powers claimed rights as against one another in
the New World. However, the bold assertion of right in the Crowns charters asserted a
title against Europeans only, and were considered a blank paper so far as the rights of the
natives were concerned. Thus the doctrine of discovery was not a denial of Indian rights,
as James Stephen claimed somewhat disingenuously in 1839, so much as a means of
excluding competing European nations. The Crown and the United States had, he said,
consistently recognized the distinct political organization of the Cherokee:105
Certain it is, that our history furnishes no example, from the first settlement of our country,
of any attempt on the part of the crown to interfere with the internal affairs of the Indians,
farther than to keep out the agents of foreign powers, who, as traders or otherwise, might
seduce them into foreign alliances. The king purchased their lands when they were willing to
101
30 US (5 Pet) 1 (1831) 21, 25, and 27. He added: But I think it very clear that the Constitution nei-
ther speaks of them as States or foreign states, but just as they wereIndian tribesan anomaly unknown
to the books that treat of States, and which the law of nations would regard as nothing more than wandering
hordes, held together only by ties of blood and habit, and having neither laws or governments, beyond what
102
is required in a savage state (2728). 5 Pet, 29.
103
6 Pet, 361.
104
United States v Kagama (1886) 118 US 375 and see Harring, Crow Dogs Case at 144149 and the
105
discussion later in this chapter. 6 Pet, 547.
sell, at a price they were willing to take; but never coerced a surrender of them. He also
purchased their alliance and dependence by subsidies; but never intruded into the interior of
their affairs, or interfered with their self-government, so far as respected themselves only.
The treaties of alliance and protection made by the British Crown and its successor
sovereign authorities with the Cherokee, most especially those which reserved land for
them have never been supposed to imply a right . . . to take their lands, or to interfere
with their internal government106[p]rotection does not imply the destruction of
the protected.107 Here Chief Justice Marshall followed another contemporary and
influential jurist, Chancellor James Kent in the New York Supreme Court,108 by drawing
upon Vattel. It has been seen that in Le droit de gens (1758) Vattel stressed the principle
of equality between sovereign states, stating famously that a dwarf state was as much
sovereign as the most powerful kingdom.109 In the following passage Marshall CJ
invoked Vattels comment that a weaker state did not lose its identity if it placed itself
under a stronger one without, however, divesting itself of its right to self-government
and of its sovereignty.110 The Indian nations were dwarf states and under the
protection of the United States but still retained the vital hallmark of independence
self-government:
The actual state of things at the time [of the Royal Proclamation 1763], and all history
since . . . [as well as] the very fact of repeated treaties with them recognises it; and the settled doctrine
of the law of nations is that a weaker power does not surrender its independenceits right to
self-government, by associating with a stronger and taking its protection. A weak State in order
to provide for its safety, may place itself under the protection of one more powerful without
stripping itself of the right of government and ceasing to be a state.111
The Chief Justices elaboration in Worcester of his earlier characterization in
Cherokee Nation of the Indian tribes as domestic dependent nations recognized,
then, the right of the tribes to self-government except to the extent diminished by
treaty. The Constitution gave Congress the sole and exclusive right of regulating com-
merce with the Indians. The powers under that clause, said Chief Justice Marshall,
comprehend all that is required for the regulation of our intercourse with the
Indians.112
The constitutional status of the Indian tribes as domestic dependent nations
flowed from their retention of their customary self-government, that status circularly
operating to protect that self-government. This recognition of the residual sovereignty
of the American Indian tribes became the central predicate of the American common
law. It was a conclusion fitting the post-Revolutionary constitutional climate of the
United States in that it stressed the location of the sovereign power in the consent of
those subject to it and the divisibility of sovereignty.113 Thomas Jefferson, no friend of
106 107
Ibid 553. Ibid 552.
108
Chancellor Kent was later to write influential Commentaries on the American constitution. He used
Vattel in confirming the juridical status of the Oneida Indian Nation in Jackson v Goodel 20 Johns, 193.
109
E de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct of the Affairs of
Nations and of Sovereigns (trsl of 1758 edn by CG Fenwick, Washington: Carnegie Institution, 1916) I, 1,
110
paras 56; Introduction, para 18. Ibid, I, ch 16.
111 112
Ibid 560561. Ibid 559.
113
J Quarles, The Nature and Limitations of Sovereignty (1935) 24 Georgetown LJ 69.
the English common law,114 had dismissed the absolutist sense of sovereignty as an
idea belonging to the other side of the Atlantic.115 In recognizing the status of the
Indian tribes Marshall was in a sense applying to the Indian nations constitutional
principles that the Founding Fathers had applied to themselves.116
As the judgments of Baldwin and Johnson JJ showed, however, there was nothing
inevitable about the position taken by the Chief Justice. The hold that his approach
soon commanded was probably as much a testimony to his personal stature as to the
power of its logic.117 The recognition of residual sovereignty did not extend to those
groups of Indians or fragments of tribes, [who] having lost the power of self-government,
and who lived within the ordinary jurisdiction of a State, have been taken under the
protection of the [State] laws.118 In other words native groups of the second category
identified earlier though perhaps still retaining some coherence were not to be regarded
as falling under the designation of domestic dependent nations. The American
common law thus configured about tribal sovereignty, which became the centrifugal
force for all Indian rights. The notion of an asymmetrical sovereign-to-sovereign
relation was established very early in American law.
The Marshall doctrine of residual tribal sovereignty was not reconsidered directly
by the Supreme Court until 1883. Until then the few cases had skirted the topic of
tribal sovereignty, focussing instead on expanding the power of the federal govern-
ment and limiting the power of the states.119 The major court decisions between
Worcester and Crow Dog (1883) primarily determined either tribal rights against the
government of the United States or preserved exclusive federal authority over the
tribes at the expense of the states. In contrast was a line of state cases that took a
position hostile to tribal sovereignty, these cases mainly concerning state jurisdiction
over crimes on reservations:120
It denied the vitality of tribal law and sovereignty, dismissing tribal society as savage, fit only to
be pushed aside by the forces of white civilisation. In this view criminal law was a matter reserved
to the states by the Constitution as routine police powers, an essential element of state sover-
eignty. Accordingly, it was not sound public policy to extend any notion of sovereignty or law to
the Indian tribes because that would lead to violence, disorder, and jurisdictional confusion and
also serve the fiction of assigning some legitimacy to political structures that were primitive and
uncivilised.
Despite state law trending that unsympathetic direction, ex parte Crow Dog (1883)
represented an affirmationif but a frail and soon undermined oneof tribal
sovereignty. In this case the Supreme Court quashed the conviction of Crow Dog for
shooting his chief, Spotted Tail, to death in 1881. Applying Worcester, the Supreme
Court held that tribal law continued to apply amongst the Indian tribes as part of
their residual sovereignty. That meant the United States courts lacked criminal juris-
diction over crimes committed between Indians in Indian country (on reservations).
114
See JS Waterman, Thomas Jefferson and Blackstones Commentaries (1933) 27 Illinois L Rev 629.
115 116
Quoted in Wilkinson, American Indians, Time and the Law, 54. Ibid.
117
Marshalls position was shared by the other two most distinguished jurists of his day, Joseph Story and
118
Chancellor Kent. Worcester v Georgia 6 Peters, 590 per MLean J.
119 120
S Harring, Crow Dogs Case, above, 102. Ibid 52.
This purple passage from Mr Justice Matthews bristles with ambivalence, at once
recognizing and preserving the integrity of the tribes whilst also incidentally noting
their cultural inferiority. To enforce the federal criminal law amongst Indians on
reservation lands would be a case where: 121
. . . by argument and inference only, [it] is sought to be extended over aliens and strangers; over
the members of a community separated by race, by tradition, by the instincts of a free though
savage life, from the authority and power which seeks to impose upon them the restraints of an
external and unknown code, and to subject them to the responsibilities of civil conduct, according
to rules and penalties of which they could have no previous warning; which judges them by a
standard made by others and not for them, which takes no account of the conditions which
should except them from its exactions, and makes no allowance for their inability to understand
it. It tries them, not by their peers, nor by the customs of their people, nor the law of their land,
but by superiors of a different race, according to the law of a social state of which they have an
imperfect conception, and which is opposed to the traditions of their history, to the habits of
their lives, to the strongest prejudices of their savage nature; one which measures the red mans
revenge by the maxims of the white mans morality.
The impact of Crow Dog and its eventual undoingthe judicial curtailment of the
doctrine of residual tribal sovereigntywill be described soon. Dicta in the case
indicated Congress might explicitly extend criminal jurisdiction in Indian territory if
it so chose, an invitation which Congress was not slow to take and one that in doctrinal
terms exposed the notion of residual tribal sovereignty.
5. Sovereignty and the Anglo-settler common law: the Empire(s) of

Uniformity and the positivization of sovereignty
James Tully uses the term the Empire of Uniformity to describe a totalizing tendency
in Anglo-American constitution-talk. This tendency has been one suppressing
diversity and constitutional pluralism in favour of an absolutist (monologic) and
homogenized account of state authority: the single unchallenged voice, no other, of
Leviathan. Certainly that tendency occurred most dramatically in Anglo-American
common law and international law as they developed during the nineteenth century,
the latter half in particular. It was in that period that both systems packaged the notion
of sovereignty into a doctrinal and positivized form. It was also during this period that
law became a more brutal instrument of the social policy of the settler-state as the
regimes described later in this chapter were enacted. As the introduction to this chapter
stressed, these were designed both to make aboriginal land available for settlement and
to end the backward tribalism. Through the nineteenth century the idea of law had
moved from the classical reason-based form to the positivist one emphasizing laws
basis in sovereign will. The ascendant, more evidently absolutist notion of sovereignty
being applied in all jurisdictions attested that movement.
The Marshall Court judgments, in formulating the sovereign-to-sovereign model or
sovereign-within-sovereign (imperia in imperio), provided (at least notionally) a
dialogic and pluralistic model that the British colonies did not follow during the
121
(109) US 556 (1883), 559.
nineteenth century. It will be seen that even by the second quarter of the nineteenth
century the more flexible and accommodating eighteenth-century approach kept
some tenability. From that time, however, imperial and colonial officials and courts
took a more resolute and less permissive position. Increasingly officials denied aborig-
inal polities any distinct status and would not acknowledge any rights associated with
the tribe and its way of life, other than those affecting the conscience and discretion of
the Crown as guardian. In the British colonies and dominions, this, it was explained in
opening the chapter, was an outcome of the deep-seated belief in the common law con-
stitution based upon the sovereignty of the Crown. At this time tribal rights were for
Englishmen a contradiction in terms since rights vested only in the individual and in
terms of property-ownership and representation in a legislature under the sovereignty
of the Crown. The identity of the paramount sovereign itself was juridically closed and
incontrovertible. There was no constitutional authority apart from the Crown.
This was an archetypal mid-nineteenth-century view of the nature of ultimate
political authority. It blended the growing legal preoccupation with law as a sovereign
command with the dominant liberal ideology. This resulted in what became, as the
century progressed, more aggressive state programmes of civilization and assimila-
tion. To repeat, this blanket amenability to British law was not seen at the time as a
negative result. Colonial Office officials and humanitarian advocates regarded the full
extension of the rights and liberties of British subjects to aboriginal peoples as the best
protection of their interests, rather than some separate but ill-defined status of the
American sort.
Austins influential122 book The Province of Jurisprudence Determined was published
in 1832 at the same time as the Marshall Court was developing its doctrine of divided
sovereignty. Austins work was largely overlooked during his lifetime and only became
influential, and then increasingly, during the second half of the century. It has been
said that the chief effect of his work was to attach an exaggerated importance to the
theory of sovereignty.123 Certainly Austins work eventually permitted common
lawyers to conceive sovereignty in a fuller, more deliberative manner. It took them
beyond the long and undoubted raw premise of the legislative supremacy of
Westminster. But this emergent consciousness of common lawyers about sovereignty
as doctrine was not solely a result of Austin, although undoubtedly the acceptance of
his tenets contributed enormously to it. What made Austins work so influential was
that it offered a theory for the times, a theory distinctly helpful to European state
nationalism of the nineteenth century, English not least. More particularly he
provided common lawyers with the basis for elaborating legal knowledge as a well
organized subject respectable within the environment of university education and as
the special learned expertise of a modern profession.124 Austins work thus had
122
Holdsworth, The History of English Law, vol 15, 356360 reports that most books on jurisprudence
published between 1850 and 1875 were Austinian in character.
123
G Sabine and T Thorson, A History of Political Theory (4th edn, Hinsdale, Illinois: Dryden Press,
1973) 620.
124
R Cotterell, The Politics of Jurisprudence, 7982. Sir Frederick Pollock is quoted as saying that law
would be neither a trade, nor a solemn jugglery, but a science in D Sugarman, Legal Theory, the Common
Law Mind and the Making of the Textbook Tradition in W Twining (ed), Legal Theory and the Common Law
(Oxford: Basil Blackwell, 1986) 26, 36.
enormous influence as an expression of the ideology required by Victorian England in

the colonies,125 empire as well as the realm.126
Austin provided a description of sovereignty127 flowing directly from his command
theory of law, a position heavily influenced by Hobbes and Bentham.128 Laws prop-
erly so called are a species of command, he said and being so every law flows from a
determinate source or emanates from a determinate author.129 That determinate
authority was the sovereign, that certain member of the society, or that certain body
of its members, to whose commands, expressed or intimated, the generality or bulk of
its members render habitual obedience.130 Austin held that the members of the soci-
ety must either be dependent or subject to that sovereign: By an independent polit-
ical society, or an independent and sovereign nation, we mean a political society
consisting of a sovereign and subjects, as opposed to a political society which is merely
subordinate; that is to say, which is merely a limb or member of another political
society, and which therefore consists entirely of persons in a state of subjection.131 He
summarized the distinguishing marks of the sovereign this way:
The generality of the given society must be in the habit of obedience to a determinate and
common superior: whilst that determinate person or determinate body of persons must not be
habitually obedient to a determinate person or body. It is the union of that positive, with this
negative mark, which renders that certain superior sovereign or supreme, and which renders that
given society (including that certain superior) a society political and independent.132
In this lengthy passage Austin described how tribal societies failed to meet the criteria for
sovereignty:
Inasmuch as the given society lives in the savage condition, or in the extremely barbarous
condition which closely approaches the savage, the generality or bulk of its members is not in
a habit of obedience to one and the same superior . . . The bulk of each of the families which
compose the given society, renders habitual obedience to its own peculiar chief: but those
domestic societies are themselves independent societies, or are not united or compacted into
one political society by general and habitual obedience to a certain and common superior.
And, as the bulk of the given society is not in a habit of obedience to one and the same
superior, there is no law (simply or strictly so styled) which can be called the law of that given
society or community. The so-called laws which are common to the bulk of the community,
are purely and properly customary laws; that is to say, laws which are set or imposed by the
general opinion of the community, but which are not enforced by legal or political sanctions.
125
WL Morison, John Austin (London: Edward Arnold, 1982) 151169. On Austins influence in Africa
see RB Seidman, The State, Law and Development (London: Croom Helm, 1978) 3134.
126
F Harrison, The English School of Jurisprudence (1878) xxiv Fortnightly Review, 475492; Sheldon
Amos, The Science of Law (London: Henry S King, 1874). Also M Lobban, The Common Law and English
Jurisprudence 17601851 (Oxford: Clarendon Press, 1991) 257 et seq.
127
Lobban, above, 245256.
128
See M Francis, The nineteenth century theory of sovereignty and Thomas Hobbes (1980) 1 History
of Political Thought 517. Gerald Postema argues that it was Austin rather than Bentham who introduced
Hobbesian authoritarianism into classical positivism: Jeremy Bentham and The Common Law Tradition
(Oxford: Clarendon Press, 1986) 327.
129
The Province of Jurisprudence Determined (1832, reprinted edn, London: Weidenfeld and Nicolson,
130
1955) 133. Ibid 194.
131 132
Ibid 195. Ibid.
The state which I have briefly delineated, is the ordinary state of the savage and independent
societies which live by hunting or fising in the woods or on the coasts of New Holland.133
Austin thus denied original sovereign status to tribal societies.

From the mid-Victorian period international law also demonstrated a tendency
towards conceiving sovereignty in a more doctrinal or positivized (and, per Tully,
monologic) form in that it formulated a standard of civilization for entry into the
charmed circle of states wherein sustained relations were maintained. The achieve-
ment of a standard of civilization measured, of course, on the European scale thus
became the qualification for a state to be regarded as equal and independent. This
standard of civilization and its consequences for those aboriginal polities in Africa and
the Pacific who, in the second half of the nineteenth century, were at the freshest
frontiers of British imperialism will be considered soon. Meanwhile and from the same
time, however, in Australasia and British North America the original sovereignty of the
aboriginal peoples was regarded as spent. It was at best a momentary original condition
long since gone. Legal sovereignty vested exclusively in the Crown.
The remainder of this chapter will review this doctrinaire formulation of sovereignty
in the common law and international law from the mid-Victorian period. One should
be careful to stress that this tendency was so effective for a number of reasons. Most
fundamentally it suited the practice of European states, including not least the imperial
practices of Britain. It also matched the goals of particular colonies anxious to spread
settlement over lands claimed and occupied by the native peoples. Accompanying
these were the developments within the nature and character of legal (and scientific)
reasoning itself and, in England, its practice and teaching.
(a) Upper Canada

Whilst the Marshall Court was considering the character of government relations with
the Indian tribes during the early mid-nineteenth century, Canadian authorities were
also reaching their own conclusions. These coincided with those of Justices Baldwin
and Johnson south of the border.
The balance of power between the First Nations of Canada and the Crown had
shifted after the war of 1812 with the United States. After that and as British domin-
ion in Upper Canada consolidated, colonial and imperial officials believed that the
Indian tribes were no longer distinct political entities (allies) and that Indians them-
selves were subjects of the Crown. Their organized political formsthe nation, the
tribethus lacked any juridical standing, as did tribal individuals themselves so far as
any aboriginal (that is, collective) rights were concerned. It was seen at the end of the
previous chapter that this transition from ally to subject occurred during the 1820s,
a result confirmed judicially a century later in Sero v Gault (1921).134 Undoubtedly the
133
The Province of Jurisprudence Determined (1832, reprinted edn, London: Weidenfeld and Nicolson,
1955) 208. Jeremy Bentham in A Fragment on Government (1776, reprint edn by W Harrison, Oxford:
Blackwells, 1948) para 48 had observed the absence of a legislator and habitual obedience in tribal society,
as had Thomas Hobbes, Leviathan (1651, reprint edn London: Penguin, 1985) I, xiii, 63.
134
Sero v Gault (1921) 64 DLR 327, 331.
defeat of the British and Indians in the War of 1812 severely damaged Indian military
capability as to render them unthreatening to the American and considerably less
potent in British Canada.135 When the increasingly fragmented Great Lakes tribal
nations no longer seemed a threat, they did not have to be treated legally as though
they were.
After this defeat serious pressure grew on the tribal nations land. Land cessions in
the form of treaty-making continued, and did so throughout the century. Numerous
land cessions had been negotiated in the last years of the eighteenth century by Sir John
Johnson and his junior officer Captain William Crawford and Governor Haldimand,
and were treated by the colonists as absolute sales. After 1812 the Indians had learnt to
negotiate terms so that the rivers and forests remained open and they might continue
to hunt and fish. However, those terms tended not to find their way into the docu-
mentary record. Also a new practice was introduced in the name of economy and
became a permanent feature of Indian treaties in Canada. In 1818 an annuity system
was commenced by which the bands would receive a small annual payment in perpe-
tuity rather than a considerably larger, but one-off, payment.136 This practice appealed
to the Indians, belief that the treaties established an enduring political relationship
between their people and the Crown.
An 1836 opinion of Attorney-General (Upper Canada) Jameson set out the legal
status of the Indians and the legislative jurisdiction of the local assembly:137
Hitherto the Indians have been under the exclusive and from their peculiar state, the
appropriate care of His Majesty alone: The Territories which they inhabit within the Province
are tracts of Crown land devoted to their sole use as his Allies, and over which His Majesty has
never exercised his paramount right except at their request, and for their manifest advantage.
They have within their own communities governed themselves by their own laws and
customstheir Lands and property have never been subject to tax or assessment, or themselves
liable to personal service. As they are not subject to such liabilities, whither to they yet possess
the political privileges of His Majestys subjects generally. The Superintendents, Missionaries,
schoolmasters and others who reside among the Indians for their protection and civilization are
appointed and paid by the King, and to His Representative have until now all appeals been
made, and with him has all responsibility rested. In all respects they appear to be most
constitutionally within the jurisdiction and prerogative of the Crown: and without denying the
right of the Assembly to examine into grievances arising out of this or any other system of
policy, I think that in the present case it is entirely for the Crown to determine the propriety of
adhering to the present or sanctioning the adoption of a new course for their internal
government.
The opinion was caught between an older, dying legal characterization of the tribes and
the newer one of thoroughgoing amenability to English law. The older, late eighteenth-
century approach was noted in the previous chapter and seen as held by the likes of the
135
Robert J Surtees, Indian Land Cessions in Upper Canada, 18151830 in Ian A Getty and Antoine
S Lussier (eds), As Long as the Sun Shines and the Water Flows. A Reader in Canadian Native Studies
(Vancouver: University of British Columbia University Press, 1984) 65.
136
Robert Surtees, Land Cessions, 17631830 in Edward S Rogers and Donald B Smith, Aboriginal
Ontario Historical Perspectives on the First Nations (Toronto: Dundurn Press, 1993) 92.
137
Opinion of Attorney-General Jameson (Upper Canada), 18 February 1836, NAC, RG 10, vol 6,
6073760738.
Johnson clan, Justice Powell, and Lieutenant Governor Simcoe. It anticipated the
Marshall Courts formulation of a dependent but separate tribal sovereignty and can be
seen in the first three sentences above. Yet Jamesons opinion also struck the emergent
theme that despite their distinct political identity, in point of law the Indian tribes
comprised individuals who were British subjects. He did not draw the conclusion that
was then also gaining circulation, namely the full applicability of English law to the
tribes in their dealing inter se. Instead he repeated the principle that management of
Indian affairs was beyond the colonial legislature and solely within the prerogative of
the Crown.
More than any other figure in pre-Confederation British North America, Sir John
Beverly Robinson, Chief Justice of Upper Canada, expressed most fully the legal
position of the Indian and the tribe.138 Unlike Jameson, the position that he took in the
late 1820s was that the Indian Nations held no status as such. They were certainly not
residual sovereigns on the American model, a result beyond conception to this highly
loyalist Tory. Nor was he able to consider them as holding some inherent corporate
status, even where that might be implied from the character of Crown relations with
the particular tribe.
The Chief Justices judgment in Doe d Sheldon v Ramsey (1852) starkly
demonstrated his position. The case concerned the so-called Haldimand Grant of
1784 by which Lieutenant-Governor Haldimand had granted the Six Nations a large
tract of land along the Grand River in recognition of their loyalty during the American
Revolution. The Mississauga had previously surrendered this land to Britain by treaty.
This land was not held by an aboriginal title so much as under grant the nature of
which subsequently was disputed. Sheldon, the plaintiff, held under a sale in 1820
from the commissioner of forfeited estates. The land had been seized from Benjamin
Mallory who had forfeited his lands by fighting for the United States in 1813. Mallorys
title came from a lease signed in 1805 by Joseph Brant, leader of the Six Nations.
Sheldon commenced an action for ejectment of squatters. The squatters replied by
arguing that he lacked legal title since Mallory could not forfeit lands he did not own,
it being unlawful for him to have leased from the Six Nations.
The Chief Justice held that the grant to the Mohawk Indians, and such others of the
Six Nations as might wish to settle on the Grand River, of a tract of land to be enjoyed
by them and their posterity for ever could not have the effect upon any principle of the
law of England of vesting a legal estate in anybody.139 His judgment described the Six
Nations position this way:
It can never be pretended that these Indians while situated within the limits of this province, as
a British province at least, were recognised as a separate and independent nation, governed by
138
Also Robinson A-G to Boulton S-G, 31 October 1829, NAC RG 10, vol 5: fol 22902291 (Indians
may bring actions on personal rights and wrongs but not collective rights or injuries); R v Baby (1854) 12
UCQB 346; Bown v West (1846) 1 E & A 117 (UCEC). Of Robinson generally see P Brode, Sir John Robinson.
Bone and Sinew of the Compact (Toronto: Osgoode Society, 1984), which does not deal with Robinsons posi-
tion on Indian relations, and Robinson, Sir John Beverley Dictionary of Canadian Biography 9:668679. Of
the legal and political culture in Upper Canada at this time see GB Baker, So Elegant a Web: Providential
Order and the Rule of Secular Law in Early Nineteenth Century Upper Canada (1988) 38 University of
Toronto LJ 184205, and Carol Wilton, Lawless Law: Conservative Political Violence in Upper Canada,
139
181841 (1995) 13 Law and History Rev 111. (1852) 9 UCQB 105, 122123.
their laws of their own, distinct from the general law of the land, having a right to deal with the
soil as they pleased; but they were considered as a distinct race of people, consisting of tribes
associated together distinct from the general mass of the inhabitants, it is true, but yet as British
subjects, and under the control of and subject to the general law of England. As regards these
lands on the Grand River, the Indians had no national existence nor any recognized patriarchal
or other form of government or management, so far as we see in any way; the lands, as appears
from the document under which the tribes claim title to them, shew that they belonged to the
British Government. There seems to have been no trust created in these lands on any person or
body of persons for the Indians, neither was it necessary there should be, for it was more natural
the crown should be in a situation to protect their interest and treat them as a people under its
care, not capable of disposing of their possessions. Although they are distinct tribes as respects
their race, yet that gave them no corporate powers or existence . ..140
This reaffirmed his position some years earlier as Attorney-General for Upper Canada
when he had said that to talk of treaties with the Mohawk Indians, residing in the heart
of one of the most populous districts of Upper Canada, upon lands purchased for them
and given to them by the British Government, is much the same, in my humble
opinion, as to talk of making a treaty of alliance with the Jews in Duke street or with
the French emigrants who have settled in England.141
The legal incapacity of Indians was widely acknowledged in the pre-Confederation
period. Indians could sue in respect of their personal rights and property but not
individually or collectively in respect of any group rights. In 1832 the Superintendent
of Indian Affairs remarked that the protection of Indian lands through the Crown offi-
cials was vital because the Indians have not the same legal remedy as other subjects. 142
In 1836 in an opinion quoted earlier, the Attorney-General for Upper Canada, Robert
Jameson, spoke of the peculiar situation of the Indians with regard to civil rights
being a large community without any corporate capacity to hold lands or maintain
suits in defence of their common property.143 Twenty years later the Superintendent of
Indian Affairs, RT Pennefather, spoke of the anomalous position of the Indian tribes,
at once labouring under the disabilities imposed by law upon minors, and enjoying
some of the territorial privileges of independent sovereigns.144 Official reports of the
mid-nineteenth century frequently spoke of the aboriginal tribes and individuals lack
of legal status and their dependence upon the Crown to protect their lands from white
encroachment.145 The Darling Report (1828), for example, commented that an Indian
140
At 133134.
141
John Beverly Robinson, A-G, to Robert Wilmot Horton, Under-Secretary of State for War and
Colonies, 14 March 1824, cited in Sero v Gault (1921) 64 DLR 327 (Ont SC) at 330 per Riddell J.
142
Givins to Lieutenant-Colonel Rowan, Civil Secretary, 28 November 1832, enclosure in Sir J
Colborne, Governor-General, to Viscount Goderich, 20 November 1932 in British Parliamentary Papers
Anthropology ABORIGINES Volume 3 (Session 1834) (Shannon: IUP reprint series, 1968) 141, 145.
143
National Archives (Canada), RG10 vol 60:60683. Jameson (A-G, Upper Canada) to J Joseph, Sec to
Lt Gov, 24 February 1836.
144
Annual Report 1856, in Correspondence respecting the Indian Department in Canada GBPP (595)
vol XLIV 3, 4.
145
HC Darling, Report on Indian Affairs to Lord Darling, 24 July 1828, Parliamentary Papers 1834 (no
617) 22, 30; JB Macaulay, Report on Indian Affairs, 1 April 1839 (NAC RG10, vol 717, no 168712);
Report on the Affairs of the Indians in Canada 1844 [Bagot Report] section I, 6 and section III, 23; Report
on Indian Affairs 1858 [Pennefather Report] 9197.
cannot legally defend himself, nay, a whole tribe have not more power.146 Their rights
were to be protected by the Government until they are admitted individually to the
rights of His Majestys other subjects amongst whom they live, that is, until they shed
tribalism.147
Thus the once-independent Canadian tribes somehow came under Crown sover-
eignty during the early nineteenth century, moving from ally to subject of the Crown.
Not only were they regarded as being subjects of the Crown by the end of the 1820s,
but their forms of political organization and representation were denied juridical
standing before the courts of Upper Canada. Their relations with the Crown were ren-
dered political in the sense of being non-justiciable or uncognizable in the colonial
courts except through the protective agency of the Governor. That lack of status
extended not only to their corporate form but also to individuals claiming rights that
were aboriginal in character. In short, aboriginal peoples were amenable to the courts
jurisdiction, like all British subjects, but retained enough of their former status as allies
(or non-subjects) to be disabled from bringing proceedings to protect their customary
rights.
In the late 1830s Governor Francis Bond Head tried to emulate the American
example when he proposed the removal of the aboriginal peoples of Upper Canada to
Manitoulin Island. Here they could be protected, isolated from settler society. He
persuaded some bands in what is today southern Ontario, but his policy of protection
ran against the grain of the assimilation model that was becoming increasingly attrac-
tive to colonial and imperial intelligentsia. As a policy, assimilation was brewing in
settler consciousness, aided by the humanitarian movement in England, but it was
not until the second half of the century that it would mature into actual policy
supported by law.
Meanwhile the courts of Lower Canada took the same position as Upper Canada,
holding to the rule of Indian incapacity to commence proceedings based on the claim
to collective rights.148 One case, Connolly v Woolrich (1867), has been held out as a
distinguished exception.149 In this case Justice Monk of the Superior Court had to
decide between two marriages made by William Connolly. Connolly had first
married as a callow seventeen-year-old in 1803, taking as his wife the daughter of a
Cree chief, Suzanne, with whom he cohabited in Indian country according to tribal
custom and usage and by whom he had six children. In 1832 Connolly left Suzanne
and married Julia Woolrich in the Roman Catholic Church, living with her in
Montreal until his death in 1849. After his death the court was called upon to
determine who were his legitimate heirs. The Superior Court and on appeal Queens
Bench decided in favour of his first wife. This result was based upon judicial recogni-
tion of the continuity of the indigenous law and institutions notwithstanding the
provisions of the Hudson Bay Companys charter. The judges refused to accept that
146
Report of HC Darling, enclosure in Lord Dalhousie to Sir George Murray, 27 October 1828, GBPP
147
1834, no 617, 2229, 26. Ibid.
148
Commissioner of Indian Lands for Lower Canada v Payant (1856) 8 RJRQ 75; Nianentsiasa v Akwirente
et al (No 1) (1859) 3 LC Jur 316; Nianentsiasa v Akwirente et al (No 2) (1860) 4 LC Jur 367; Commissioner
of Indian Lands v Jannal (1865) 18 RJRQ 187; Bastien v Hoffman (1867) 17 LCR 238.
149
Harring, White Mans Law 169 et seq.
the charter or other act of the Crown such as the Royal Proclamation of 1763 could of
itself introduce English law into the northern territory unless also adopted by native
peoples. Justice Monk responded to the contention that by the charter of the
Hudsons Bay Company the territorial rights, political organisation, such as it was,
[and] the laws and usages of the Indian tribes were abrogated. In his opinion it was
beyond controversy that they did not, that so far from being abolished, they were left
in full force, and were not even modified in the slightest degree, in regard to the civil
rights of the natives.150 He then cited a lengthy passage from Chief Justice Marshalls
judgment in Worcester v Georgia, italicizing for emphasis extracts stating that the
Crown did not by the mere issue of charter attempt . . . to interfere with the internal
affairs of the Indians.151
Significantly the passages cited by Justice Monk from Worcester were not those describ-
ing in point of law the residual sovereignty of the Indian tribes, but simply those that rec-
ognized as a matter of fact the continued integrity of tribal political structures after
Crown sovereignty. He based the continuity of the Cree customary law on this retained
factual integrity. Unlike the American Supreme Court, he did not explicitly base that
continuity upon a legal notion of retained, residual sovereignty. Some such recognition
might have been implicit in his judgment but nowhere did he make that plain. The
judgment thus seems more to reflect a pre-modern idea of the common law such as that
seen in The Case of Tanistry rather than a modernist view of the nature of sovereignty.
On appeal a majority of the Court of Queens Bench agreed, although the judgments
did not explore the issue as thoroughly or draw on the American cases like Justice
Monk.152 This precedent was a solitary case that did not lay the foundation for a late
nineteenth century Quebec jurisprudence recognizing customary institutions and
laws. Indeed, some years later and still on the bench Justice Monk found his position
had become that of the dissentient. In Fraser v Pouliot (1881) the Superior Court of
Quebec came to the opposite conclusion, holding that British sovereignty had
abrogated the Cree customary law of marriage.153
The leading nineteenth-century Canadian case on the status of aboriginal land
rights was R v St Catharines Milling and Lumber Company (188588). Its main con-
cern was the nature of Indian title to their customary land.154 The case had to deter-
mine whether the federal or provincial Crown held the underlying legal title to lands
occupied by the Indian nations. It did not deal directly with the status of the aborigi-
nal polities per se, although the question of who or what body held whatever collective
rights there were was an aspect of the land title question. As it was, that question of
legal identity was not answered directly. The case commenced in the Ontario Court
of Chancery,155 proceeding through the Ontario Court of Appeal,156 Supreme Court
150 151
(1867) 17 RJRQ 75, 79. Ibid 81.
152
Johnstone et al v Connolly (1869) 17 RJRQ 266.
153
(1885) 13 RLOS 520 (QB), upheld on appeal (1886) 13 SCR 342. See also Harring, White Mans
Law, 172173.
154
The case is discussed thoroughly in Harring, White Mans Law, ch 6. I cannot endorse his observation
(125126) that the ignorance of the legal status of Indians and Indian lands shown by the dozen Canadian
judges on three courts who passed on the case is remarkable.
155
(1885) 10 OR 196 (Chancellor Boyd).
156
(1886) 13 OAR 148 (Hagarty CJO, Burton, Patterson, and Osler JJ A).
of Canada,157 and, finally, to the Privy Council. At all stages and apart from two
vigorous dissenting judgments in the Supreme Court by Justices Strong and Gwynne,
the ruling was in favour of the province. The provincial government, represented in
court by Oliver Mowat, Premier and Attorney-General, argued that the Indians
lacked legal title to their land whilst conceding that the Crown had as part of its lib-
eral policy elected to recognize their political right.158 Chancellor Boyd agreed,
endorsing the approach established earlier that century by Chief Justice John Beverly
Robinson.
The St Catharines case was extensively argued and notable, at least in the three
Canadian courts, for the breadth of authorities cited. Those included the American
cases, most notably Johnson v MIntosh (1823), the leading case of the Marshall
Supreme Court on land rights.159 The judges were by no means consistent in their use
of the American cases, but none sought to argue the domestic, dependent nation
approach. One cited the cases as showing the absence of any individual, collective, or
national legal status for aboriginal people,160 as he, with all of the majority judges,
reaffirmed the established approach of that time. Throughout, the judgments
presumed and sometimes described the Indians as lacking legal capacity to defend their
aboriginal (that is, collective) rights, collapsing standing and title into the same result.
Justice Taschereau put it bluntly when he dismissed the possibility of there being any
legal title enforceable by aboriginal people:161
The necessary deduction from such a doctrine would be, that all progress of civilization and
development in this country is and always has been at the mercy of the Indian race. Some of
the writers cited by the appellants, influenced by sentimental and philanthropic
considerations do not hesitate to go as far. But legal and constitutional principles are in direct
antagonism with their theories. The Indians must in the future, everyone concedes it, be
treated with the same consideration for their just claims and demands that they have received
in the past, but, as in the past, it will not be because of any legal obligation to do so, but as a
sacred political obligation, in the execution of which the state must be free from political
control.
At the end of the twentieth century, history retrospectively judged with greater favour
the bold and, for that time, courageous dissenting judgments of Justices Strong and
Gwynne in the Supreme Court, doing so in much the same way as it has looked backed
glowingly on Justice Monks judgment in Connolly v Woolrich. Yet even these judg-
ments did not venture into a description of the legal status of the traditional forms of
Indian political organization, keeping focus primarily on the question of title.
Certainly, although citing the Cherokee Cases, neither judge attempted to describe the
Canadian Indian Nations as residual sovereigns. Nonetheless in holding that the
aboriginal title was legal in character they implicitly recognized the legal standing of
the aboriginal political structures through which that title was constituted. It would be
157
(1887) 13 SCR 577 (Ritchie CJ, Strong, Fournier, Henry, Taschereau, and Gwynne J).
158
See ibid 132.
159
The leading cases on the legal and constitutional status of the Indian tribes were decided after this case,
and were Cherokee Nation v Georgia (1831) and Worcester v Georgia (1832). Some Canadian judges also
160
referred to these cases but the main attention was given to Johnson v MIntosh. Burton JA, 427.
161
Taschereau J, 513.
nearly a century before that approach with its implicit though inspecific recognition
of tribal status became recognized by the common law of Canada.
The Upper Canada legislature was given jurisdiction over native affairs in 1860.162
That legislation will be considered more fully below. It continued the supposition that
relations with aboriginal peoples were non-justiciable in character. All that had
changed was the locus of the trustee duties, which had moved across the Atlantic. Even
those Canadian judges of the nineteenth century willing to recognize aboriginal
political structures and associated rights (to land) stopped short of basing those upon
the American model of retained inherent tribal sovereignty.
(b) Australia
Instructions to the Governors of New South Wales told them to endeavour by every
possible means to open an intercourse with the natives, and to conciliate their affections,
enjoining all our subjects to live in amity and kindness with them. These instructions
stipulated that if any of our subjects shall wantonly destroy them, or give them
unnecessary interruption in the exercise of their several occupations, it is our will and
pleasure that you do cause such offenders to be brought to punishment according to
the degree of the offence.163 These instructions distinguished the natives from our
subjects, leaving the formers status distinct notwithstanding the Crowns formal claim
to sovereignty over the entire Australian continent. Despite Crown sovereignty,
Aborigines were regarded as apart from the colony and not usually under its jurisdiction.
In earliest conception sovereignty here followed a personal form not unlike the
seventeenth-century royal charters for America.
In the years that followed foundation of the colony, clashes between the colonists
and Aborigines inevitably occurred and pressed the jurisdictional issue. The
Governors insisted that crimes by the settlers against Aborigines should be tried in
colonial courts, but convictions were difficult and sentencing light. In 1800 a frus-
trated Governor Hunter reported the trial of two white men accused of most bar-
barously murdering two native boys. His dispatch to the Duke of Portland described
the Aborigines as a people now under the protection of His Majestys Government.164
In 1816 Governor Lachlan Macquarie issued a proclamation to Aboriginals setting
out rules the more effectually to prevent a Recurrence of Murders, Robberies, and
Depredations by the Natives, as well as to protect the Lives and Properties of His
Majestys British Subjects residing in the several Settlements.165 The Proclamation
decreed that fighting amongst the natives and the infliction of punishments on
Transgressors of their own Customs and Manners at or near Sydney, and other prin-
cipal Towns and Settlements in the Colony, shall be henceforth wholly abolished, as a
barbarous Custom repugnant to the British Laws, and strongly militating against the
Civilisation of the Natives, which is an Object of the highest Importance to effect, if
possible. The Proclamation also invited such of the Natives as may wish to be
162
23 Vict cap 15 (UK).
163
Instructions to Captain Arthur Phillip, 23 April 1787 in GB Barton (ed), Historical Records of New
164
South Wales (1889)[HRNSW], vol 1, 485. HRNSW 4, 2.
165
Historical Records of Australia (Ser 1, 1917), vol 9, 141.
considered under the Protection of the British Government, and disposed to conduct
themselves in a peaceful, inoffensive, and honest Manner to hold a certificate or
passport.
Officially, then, Aborigines in proximity to the settlements were regarded as subject
to the colonys protective jurisdiction, at least in matters of criminal law. However this
was far short of a claim to thoroughgoing jurisdiction over them all. Macquaries
attempt to interfere in tribal disputation did not purport to operate other than around
the settlements. The Proclamation reflected the sense of Aborigines being outside
colonial jurisdiction, except those that had voluntarily submitted to it (by certification
or proximity).
In R v Lowe (1827) the defendant Nathaniel Lowe, an army lieutenant, was indicted
for the murder of an Aboriginal named Jackey Jack. The defendant was represented by
the redoubtable Dr Wardell and Mr WC Wentworthan established double-act
in the New South Wales Supreme Courts early days. They objected to the jurisdiction
of the court on the ground that the Aboriginal was not a British subject nor an alien
friend (nor even an alien enemy). Wentworths argument cited Vattel, submitting that
although the Aborigines had not settled into the shape of a nation they were still subject
to the law of nations. The British could not, according to any principles, have assumed
any right of sovereignty over them; they are the free occupants of the demesne or soil,
it belongs to them by the law of nations, anterior to any laws which follow from human
institutions. That right, he added, was not infringed by the Supreme Courts jurisdic-
tional statute which did not reach Aborigines. How is it, he asked, that atrocities
involving them were daily witnessed, almost at the Magistrates doors, and no
cognizance . . . taken? It was because they are independent families, without any
Sovereign or laws amongst themselves, besides the native customs which are peculiar to
their own race. Chief Justice Forbes ruled that whatever the position under the law of
nations the court had jurisdiction under the statute. For the purposes of this trial the
deceased might be regarded as a British subject or an alien ami, but in any case he was
entitled to lex loci. In short, the actual status of Aborigines remained indeterminate but
the Supreme Court had jurisdiction to try their alleged murderers. As it was, the jury
found Lowe not guilty and he was escorted from the courthouse to loud and general
applause.166
This case demonstrated how relations between colonists and Aboriginals were to be
governed by English law, although the result and celebration afterwards showed also its
largely illusory character: British justice hardly placated the ghost of Jackey Jack.167
Aboriginals continued to be tried in colonial courts, the proceedings rendered farcical
by their incomprehension of legalism (which, for instance, prevented their giving
evidence on oath) even after the appointment of Protectors to ensure otherwise.168
166
R v Lowe [1827] NSWSC 32 (18 May 1827). The report is available online at http://www.austlii.org/
au/special/nswsc/pre1900/1827/32.html.
167
Bruce Kerchers informative (as always) notes to the case on the above website include references to the
dispatches to London on these proceedings which indicated Lowes almost certain guilt.
168
For instance, Return of all Trials of Aborigines with the Result arrived at, enclosure in Governor Sir
George Gipps to Lord Stanley, 21 March 1844 in Aborigines (Australian Colonies), GBPP 1844, no 627, 295
at 305.
Between 1829 and 1841 the Supreme Court of New South Wales heard three cases
on whether English law applied to Aboriginal relations inter se. This was a question that
Lowe had left open. The cases are notable for the change in position from the first case
R v Ballard (1829) to the better-known R v Jack Congo Murrell (1836). In the first case
the Supreme Court disavowed jurisdiction over Aboriginal matters inter se. The court
qualified that considerably in the second case, though nowhere as much as suggested
by the incomplete report published by Legge sixty years later and based upon newspaper
reports.169
In Ballard (1829) the colonial Attorney-General sought the direction of the court as
to whether an Aborigine could be prosecuted for the alleged murder of another,
committed near Sydney. The Supreme Court ruled that it lacked jurisdiction. Chief
Justice Forbes opened with the observation that this was a case that the court would
have to deal with upon general principles, in the absence of any fixed known rule upon
the subject. He noted the absence of any magistracy to enforce laws amongst the
Aboriginal population and their reliance upon rigid and barbarous custom, adding for
reason and good sense in their relations with settlers English law would always apply.
He was not aware that British laws [had] been applied to the aboriginal natives in
transactions solely between themselves, whether of contract, tort, or crime. If English
law were to apply, he asked, where was the line to be drawn? Such interference in the
affairs of harmless inoffensive savages even if practicable would lead to results as
incompatible as impolitic. Justice Dowling made more explicit the conditions for the
application of English law to the Aborigines in their dealing inter se. This passage below
is lengthy but shows the emphasis put upon Aboriginal consent to an imperium over
them:
Until the aboriginal natives of this Country shall consent, either actually or by implication, to
the interposition of our laws in the administration of justice for acts committed by themselves
upon themselves, I know of no reason human, or divine, which ought to justify us in interfering
with their institutions even if such an interference were practicable. It is an undoubted principle
that a Colony of Englishmen settled in a new found country shall be governed by the laws of the
parent state so far as those laws are applicable to the condition of the Colony. This principle is
carried a step farther, where the new found country is inhabited by aborigines. If the inhabitants
hold intercourse with the new settlers then the laws of the settlers shall be appealed to in case of
dispute injury or aggression, arising from the one side or the other. This rule is founded upon
principles of equal justice, inasmuch as the law of England will not endure wrong or injury. The
savage, or the foreigner is equally entitled to protection from British law, if by circumstances that
law can be administered between Britons & the savage or foreigner. Amongst civilized nations
this is the universal principle, that the lex loci, shall determine the disputes arising between the
native & the foreigner. But all analogy fails when it is attempted to enforce the laws of a foreign
country amongst a race of people, who owe no fealty to us, and over whom we have no natural
claim of acknowledgment or supremacy.
Justice Willis would take up the same theme of consent just over a decade later in
Bonjon, by which time the judgments of the American Supreme Court in the Cherokee
Cases were available. The approach taken in Ballardlike the position taken in late
169
Bruce Kercher, R v Ballard, R v Murrell and R v Bonjon [1998] AILR 27. The passages that follow
are taken from this reprint (with notes) of the judgments.
eighteenth-century Upper Canada by the likes of the Johnson Superintendency,

Lieutenant-Governor Simcoe, and Justice Powellanticipated the American Supreme
Courts notion of a vestigial sovereignty ensuring the integrity of tribal law and authority
in matters inter se.
However R v Murrell (1836) reversed that.170 Justice Burton spoke for the Supreme
Court without a backward look at the earlier case. His judgment rested entirely on the
assertion of sovereignty by the Crown, although interestingly the assertions relied on
post-dated Ballard. This full amenability of the Aboriginal population to English law
might result in difficulties and inconveniences and hardships, he said, but it would
produce the best results as to the Natives themselves. If not, the local legislature or
those vested with the Exercise of His Royal Prerogative of Mercy could ameliorate
the consequences.
In June 1840 a young naval officer who was to have a significant impact upon native
policy in the British Empire of the mid-nineteenth century, Captain George Grey,
submitted a Report on the Australian Aborigines to Lord John Russell. This report was
forwarded to the Governors of Western Australia and New South Wales. Both officials
accepted that Aborigines were under Crown sovereignty but each responded differ-
ently to the issue of the applicability of English law to their internal affairs. Grey noted
that the Aborigines had resisted all efforts for their civilization, suggesting that those
had been founded on erroneous principle. This principle was that although the
natives should, as far as European property and European subjects be concerned, be
made amenable to British laws, yet so long as they only exercised their own customs
upon themselves, and not too immediately in the presence of Europeans, they should
be allowed to do so with impunity. Adverting to Lord Mansfields recognition in
Campbell v Hall (1774)171 of the continuity of local law in a conquered colony, Grey
proceeded:
The plea generally set up in defence of this principle is, that the natives of this country are a
conquered people, and that it is an act of generosity to allow them the full power of exercising
their own laws upon themselves; but this plea would appear to be inadmissible; for in the first
place, savage and traditional customs should not be confounded with a regular code of laws; and,
secondly, when Great Britain insures to a conquered country the privilege of preserving its own
laws, all persons resident in this country become amenable to the same laws, and proper persons
are selected by the Government to watch over their due and equitable administration; nothing
of this kind either exists or can exist, with regard to the customs of the natives of Australia:
between the two cases then there is no apparent analogy.
So Aborigines should be taught that British laws are to supercede their own, so that
any native who is suffering under their own customs may have the power of appeal to
those of Great Britain.172 This was a conclusion with which Governor Gipps of New
South Wales had no difficulty since it reflected the position within his colony anyway,
170
Also Barry Bridges, The Extension of English Law to the Aborigines for Offences Committed Inter
Se (1973) 59 Journal of the Royal Australian Historical Society 264.
171
(1774) Lofft 655, 98 ER 723 (KB). This proposition too clear to be controverted derived from
Calvins Case (1608) 1 Co Rep 17.
172
Report, enclosure in Captain George Grey to Lord John Russell, 4 June 1840 in Aborigines (Australian
Colonies), GBPP 1844, no 627, 100 at 100101.
where no law, save English law, or, to speak more correctly, the law of the colony
founded on English law was recognized as being in force.173 Governor Hutt of Western
Australia was more circumspect. Any attempt to make them at all times and under all
circumstances in their habits and customs amenable to our laws, would be frequently
next to impossible, and might have the effect of a teasing and tiresome persecution,
estranging them from us. He added:
Captain Greys observations have reference chiefly to the operation among the aborigines of the
English criminal law, but we cannot, in justice, forcibly introduce them to this portion of our
code, without permitting them to seek redress, or even requiring them to act, according to the
forms and dictates of the civil law also; and for this I think we are scarcely prepared. It would
indeed be productive of some singular anomalies. We could scarcely, for instance, pretend to
interfere in their mode of marriage . . . and although we punish the aborigines for trespassing and
injuring our fields and gardens, it would be in strange opposition to the hold which the Crown
assumes to possess over the lands of the country, if the right of one of them was to be admitted to
bring an action for the recovery of a property, which has been disposed of by the Government to
a colonist.174
Governor Hutt was disposed, then, towards regarding the internal affairs of the
Aborigines as not subject to English law since the practicalities as well as logical con-
sequences of doing so were too fraught. As amongst themselves they were, in his view,
better regarded as not amenable to English law.
Five years later and whilst sitting in Melbourne, then still part of the colony of New
South Wales, Justice Willis declined to follow the precedent set by Murrell.175 He held
that Aborigines were distinct though dependent allies, not British subjects. Not having
consented to British occupation or sovereignty they were entitled to exercise their own
usages and laws in their internal affairs. His judgment was lengthy compared to the
earlier cases, drawing on a variety of sources and notable for its grand, self-important
language. His sources included British practice in North America, New Zealand, the
East Indies, and the Caribbean and as reflected in the proceedings of the Select
Committee on Aborigines (1837), his references to this revealing his sympathy with
the humanitarian cause. The judgment also cited Storys Commentaries, taking those
passages that condensed the principles of the Cherokee Cases, and Vattel. These sources
illustrated the underlying principle of consent. The Aborigines were, he said, under a
state of protection, a distinct though dependent people, . . . entitled to be regarded as
self-governing communities. English law had no applicability amongst them until
they had agreed to it:
I repeat that I am not aware of any express enactment or treaty subjecting the Aborigines of this
colony to the English colonial law, and I have shown that the Aborigines cannot be considered
as Foreigners in a Kingdom which is their own. From these premises rapidly indeed collected,
173
Governor Sir George Gipps to Lord John Russell, 7 April 1841, ibid 104, 105.
174
Governor Hutt to Lord John Russell, 10 July 1841, ibid 392.
175
Judge John Walpole Willis was something of a renegade as a judge being moved around the colonies
from Canada, British Guiana, New South Wales, and finally to the outpost of Port Phillip: BA Keon-Cohen,
John Walpole Willis: First Resident Judge in Victoria (1972) 8 Melbourne University L Rev 703. For an
account of this case see Susanne Davies, Aborigines, Murder and the Criminal Law in Early Port Phillip,
18411851 (1987) 22 Historical Studies 326.
I am at present strongly led to infer that the Aborigines must be considered and dealt with, until
some further provision be made, as distinct, though dependent tribes governed among them-
selves by their own rude laws and customs. If this be so, I strongly doubt the propriety of my
assuming the exercise of jurisdiction in the case before me.
The judgment reserved the question for fuller argument by counsel, in the event of the
Aboriginal defendant being found guilty.176 However, the judgment drew strong criti-
cism from Chief Justice Dowling who declared that Murrell had finally settled the issue
and pooh-poohed Governor Gipps suggestion of declaratory legislation.177
Newspapers howled and the Aboriginal Protectors protested that the best interests of
their charges lay in thorough rather than partial amenability to English law.178
Governor Gipps and the imperial authoritiesthen also experiencing similar issues
with regard to jurisdiction over Maoriagreed. The Crowns assertion of sovereignty
entailed the thoroughgoing application of English law, at least in criminal matters, and
left no room de jure for Aboriginal custom even in matters inter se.
(c) Southern Africa: the eastern frontier

During the first half of the nineteenth century the eastern frontier of Cape Colony was
highly combustible, a tinderbox apt to ignite with the least spark. By the 1830s settler
merchants were profiteering (especially in the arms trade) and had their eyes on Xhosa
land across the border, greed compounded by the ongoing problem of cattle theft and
the occasional bitter experience of drought. This continual disorder was compromis-
ing the authority of the native chiefs and made another outbreak of hostilities
inevitable. From 1817 Governor Somerset had applied a crass reprisal policy against
the colonys threatened and threatening Xhosa neighbour, but that aggravated rather
than cooled the temperature. In the 1830s a well-meaning Dutch settler Andries
Stockenstrmdestined soon to become Lieutenant-Governor of the eastern
provincerecommended a system of treaties as a means of rehabilitating chiefly
authority and frontier discipline. The humanitarian paper in Cape Town, the
Commercial Advertiser, adopted this approach which, crucially, was urged upon and
taken up by the influential like-minded lobby in London. Lord Glenelg was sympa-
thetic and issued instructions to Governor DUrban based upon a system of treaty-
making with the eastern Xhosa chiefs. However the new Governor ripped those up
soon after arrival in 1834, after deftly executed Xhosa raids ignited the frontier. In May
1835 he annexed the land between the Kei and Keiskamma Rivers (called Queen
Adelaide Province).179 A crucial part of his design was to maintain the integrity of the
Xhosa tribes (beyond a buffer zone occupied by their freed client nation the Mfengu
or Fingoes). The tribes would retain their customary systems and laws but subject to
supervening Crown sovereignty and gradually-introduced British law.
In planning to preserve Xhosa political forms and customary law, DUrban plainly
had the East Indies and North American model in mind, but shorn of the treaty
176
The prisoner was remanded and discharged the following month, so the issue as to jurisdiction
which would have been heard by his Supreme Court colleagues in Sydneywas never heard.
177
Dowling to Gipps, 8 January 1842, ibid 145.
178
Davies, Aborigines, Murder and the Law 325330.
179
See Keegan, Colonial South Africa and the origins of the racial order, 137158.
element upon which rested the Crowns claim to an imperium over those people. He
founded Crown sovereignty in the Queen Adelaide Province entirely on conquest. The
Governors military chief, Colonel Harry Smith, a figure who would return to haunt
the Xhosa, gathered them to this taunt: You were in a lamentable way, deplorable
plight; you sought and asked for mercy; it was granted you; and now you are the sub-
jects of the most powerful nation, whose laws, manners, customs and institutions are
the admiration of the world.180
Whatever the Colonial Office model of governance DUrban envisaged under that
sovereignty was immaterial, for the omission of Xhosa consent was regarded as fatal.
Moreover the Colonial Office, the humanitarian lobby looking over its shoulder and
whispering in its ear, had formed the view that the Xhosa had justly retaliated to settler
depradations and incitement. In a famous despatch of Boxing Day 1835 Lord Glenelg
renounced British sovereignty east of the Keiskamma River, instructing DUrban to
dis-annex Xhosa territory.181 He declared that he could not admit British sovereignty
rested on any solid foundation of international law or justice:
It rests upon a conquest resulting from a war, in which, as far as I am at present enabled to judge,
the original justice is on the side of the conquered, not the victorious party. Even if there were the
most powerful motives of apparent expediency to recommend the extension of His Majestys
dominions, which I cannot allow, yet His Majesty would never consent to consult expediency at
the expense of justice . . . . Nor is there any one great course of events on which every humane
mind dwells with such settled aversion and shame, as on that which records the intercourse
between the Christian States of Europe and the heathen nations of America and Africa. I know
not that a greater calamity could befall Great Britain than that of adding Southern Africa to the
list of regions which have seen their aboriginal inhabitants disappear under the withering
influence of European neighbourhood.182
Glenelg instructed his Governor to conclude three distinct series of treaties. These
relations comprised, first, the independent Xhosa border chiefs; secondly, the chiefs of
every tribe to which a portion of territory is assigned within the British dominions;
and, finally, the other tribes in alliance with us, or in any degree under our protection.
One might note how these different shades of jurisdiction were straddled by a governing
principle of tribal consent to Crown imperium.
As it was, the treaty system put in place at Lord Glenelgs command lasted under a
decade and war renewed in the mid-1840s. Through that decade Xhosa society was
disintegrating. The authority of the chiefs had haemorrhaged fatally, a process encouraged
in part by Governor George Grey, the same who years earlier had written the
unsolicited report on the Australian Aborigine. The new Governor Smith was the war
chief of the DUrban days, and no friend of Xhosa independence. In December 1848
his old fondness for the public humiliation of Xhosa resurfaced. He declared the
former Queen Adelaide Province as the dependency of British Kaffraria. I make no
180
Colonel Smith, notes of a General Meeting with all the Tribes of the Caffres, 7 January 1836 in
(1837) GBPP, no 503, 247.
181
Sir B DUrban to Lord Glenelg, 2 December 1836, ibid 44 communicating renunciation of British
sovereignty.
182
Lord Glenelg to Sir B DUrban, 26 December 1835, in (1836) GBPP, no 279, 59 at 6869, 72.
treaty, he jubilantly informed the depleted Xhosa, I say this land is mine.183 By then
the humanitarian movement had waned and no longer held the ear of the Colonial
Office, and Smiths stock was so high that official remonstrance was unlikely.
Conquest, a ground of sovereign title over tribal peoples that the British had so
carefully avoided elsewhere for centuries, was becoming the foundation in South
Africa. This was a region with its native peoples, Griqua mixed-bloods, English popu-
lation, and rugged, intemperate Dutch settlers destined, as the nineteenth century
closed, to become the most bitterly-fought theatre of British imperialism.
However the circumstances of the Sixth Frontier War in Cape Colony during the
mid-1830s showed that at that time and in that region the established themes of British
relations with tribal peoples held. As Lord Glenelgs treaty system showed, the juridical
capacity of the tribes was to be recognized, even once they were under British protection
or sovereignty. His approach accepted their capacity to make treaties, and contem-
plated preservation of their political integrity notwithstanding British sovereignty.
This suggested the older model of Crown sovereignty seen already to have been applied
in the East Indies and British North America in the late eighteenth century. According
to this model, the continuance of customary political forms and law was not regarded
as incompatible with Crown sovereignty. Indeed, the South African experience
confirmed (as in Australia and Upper Canada a generation before) that in the 1830s
and where tribal peoples were concerned, Crown sovereignty was regarded as more
about controlling settlers than interfering with the tribes internal affairs. Yet, soon
after, that laissez-faire approach to tribal status hardened into the less accommodating
one that made British law thoroughgoing and Crown authority absolute and exclusive.
Nonetheless the Southern Africa experience in this period confirmed that in British
eyes consent remained the foundation for any Crown imperium over tribal people, and
that any by claimed right of conquest lay in extremis.
(d) New Zealand

The Maori tribes of New Zealand came under Crown sovereignty by plainer means
than the creeping character of Crown sovereignty over the Indians of Upper Canada
or the late-in-the-day, after-thought manner of the Australian Aborigine. Crown
sovereignty rested specifically upon the Treaty of Waitangi (1840). Under the Maori
version signed by the vast majority of chiefs, kawanatanga (transliterally the govern-
orship) was ceded to the Crown whilst the chiefs kept their rangatiratanga or chiefly
authority over their people. That distinction was unnoticed and, anyway, too fine for
the colonial and imperial authorities. They looked simply to the less subtle cession of
sovereignty in the English text. Nonetheless in New Zealand, unlike British North
America, the Crown could point to some formal measure by which it acquired sover-
eignty over the tribal population, however misunderstood that was by the indigenous
peoples themselves.
The Crowns acquisition of the sovereignty of New Zealand was premised at all times
on the original sovereignty of the Maori chiefs. In 1837, as the British pondered measures
to deal with the increasing problem of lawlessness in the islands, Lord Glenelg wrote
183
Keegan, Colonial South Africa and the origins of the racial order, 220.
this memorandum in which the recognition of Maori sovereignty mingled with

stadialism and the humanitarian sense of obligation:184
1. It is difficult or impossible to find in the History of British Colonization an Example of a
Colony having ever been founded in derogation of such Rights, whether of Sovereignty or of
Property, as are those of the Chiefs and People of New Zealand. They are not Savages living by
the Chase, but Tribes who have apportioned the country between them, having fixed Abodes,
with an acknowledged Property in the Soil, and with some rude approaches to a regular System
of internal Government. It may therefore be assumed as a basis for all Reasoning and all Conduct
on this Subject, that Great Britain had no legal or moral right to establish a Colony in New
Zealand, without the free consent of the Natives, deliberately given, without Compulsion, and
without Fraud. To impart to any individuals an Authority to establish such a Colony, without
first ascertaining the consent of the New Zealanders, or without taking the most effectual
security that the Contract which is to be made with them shall be freely and fairly made, would,
as it should seem, be to make an unrighteous use of our superior Power.
The instructions were prepared in 1839 by James Stephen.185 Captain William
Hobson was told to negotiate for the cession of sovereignty:186
. . . [W]e acknowledge New Zealand as a sovereign and independent state, so far at least as it is
possible to make that acknowledgment in favour of a people composed of numerous, dispersed
and petty tribes, who possess few political relations to each other, and are incompetent to act, or
even to deliberate, in concert. But the admission of their rights though inevitably qualified by
this consideration, is binding on the faith of the British Crown. The Queen, in common with
Her Majestys immediate predecessor, disclaims, for herself and for Her subjects, every preten-
sion to seize on the islands of New Zealand, or to govern them as a part of the dominion of Great
Britain, unless the free and intelligent consent of the natives, expressed according to their
established uses, shall be first obtained. Believing, however, that their own welfare would, under
the circumstances I have mentioned, be best promoted by the surrender to Her Majesty of a right
now so precarious and little more than nominal, and persuaded that the benefits of British
protection, and of laws administered by British judges, would far more compensate for the
sacrifice by the natives, of a national independence, which they are no longer able to maintain,
Her Majestys Government have resolved to authorise you to treat with the Aborigines of New
Zealand for the recognition of Her Majestys sovereign authority over the whole or any parts of
those islands which they may be willing to place under Her Majestys dominion . . .
The Crown thus recognized the original sovereignty of Maori over New Zealand. In
moving towards the acquisition of sovereignty the Colonial Office considered and
rejected the possibility of an approach resembling Marshalls doctrine of discovery
which would have allowed the Crown to issue constituent instruments without refer-
ence to Maori consent.187 Various lawyers of the time joined the Colonial Office in
rejecting the notion of an original but limited tribal sovereignty.188 However, as the
184
Lord Glenelg, Memorandum 15 December 1837, CO 209/2:409.
185
The two drafts contained strong recognition of the sovereignty of the Maori chiefs: first draft 24
January 1839, CO 209/4:203, 205206 and second draft 8 March 1839, ibid 221, 226227.
186
Normanby to Hobson, Instructions 14 August 1839 in CO 881/1:25 at 12; also in HRNZ, I, 729.
187
For instance, Glenelg, Memorandum, 15 December 1837, CO 209/2:409; Stephen to Vernon Smith,
note, 28 July 1839, CO 209/4:343; Memorandum, 18 March 1840, CO 209/8:69; Stephen to Vernon
Smith, note, 9 July 1840, CO 209/6:33; Hope to Somes, 10 January 1843, CO 209/18:388.
188
L Chamerovzow, The New Zealand Question and the Rights of Aborigines (London: T C Newby, 1848),
chs 23; opinion of Phillimore, 23 March 1848, ibid appendix 3; opinion of Woolmer, 4 February 1848,
ibid appendix 2528.
above instructions also acknowledged, that original, unqualified sovereignty would be

lost by cession to the Crown. In the case of the Maori tribes the Colonial Office did not
entertain the possibility of their remaining outside the ordinary jurisdiction of English
law after Crown sovereignty. The older model evident in British practice in the East
Indies, British North America, Australia, and in Southern Africa was no longer viable.
Crown sovereignty in New Zealand meant that in point of law (for what happened on
the ground was another matter) the Crowns writ ran throughout the islands.
Upon Crown sovereignty a group styled the Old Settlers, led by the querulous former
British resident James Busby, pushed for the recognition of their pre-sovereignty
land purchases from Maori chiefs. A lengthy article in the Bay of Islands Observer
(1841) sneered at the fondness of Sir George Gipps of appealing to the law authorities
of America according to which such purchases were invalid unless formalized by
Crown grant. That rule of pre-emption was founded, they said, upon the doctrine of
discovery and a limited tribal sovereignty that the Crown had renounced applying to the
Maori chiefs. It had recognized their full sovereignty, an attribute of which necessarily
must be the power to alienate land like any other sovereign.189 This argument cut no
ice in official quarters but, as in Australia at the same time, it showed the extent to
which the American case-law had disseminated through the colonies.
Soon after formal annexation the question of the amenability of the Maori tribes to
English law was debated in much the same way as it had been in Upper Canada and
Australia. The Attorney-General William Swainson considered the applicability of
English law to feuding tribes near Rotorua, neither being signatory to the Treaty of
Waitangi. A short while later he also reported on the position of two southern chiefs
who had participated in the Wairau affray.
The Wairau controversy was the result of a show of strength by the Nelson magistrate,
HA Thompson, who took a posse to Cloudy Bay to arrest a minor Maori chief who had
destroyed some coal-working machinery that had been operating on disputed ground.
In response in June 1843 the powerful Ngati Toa chiefs, Te Rauparaha and Te
Rangihaeata, burnt some survey huts in the disputed land in the Wairau Valley.
Captain Arthur Wakefield (brother of Edward Gibbon Wakefield, the pioneer of the
then voguish theory of systematic colonization) and Thompson made a ludicrous
attempt190 to arrest Te Rauparaha for arson. The chief indicated willingness to appear
before my pakehasthe Sub-Protector and the Land Claims Commissionerbut his
dignity would not allow arrest or manacling. Wakefield began a charge (crying
Englishmen forward!) the outcome of which was his own death plus that of twenty-
one of his hapless squad. It soon became clear that the sorry mess was brought about
by the intemperance of the police magistrate, and the order given for the Europeans to
advance on the natives. Land Commissioner Spain told the Acting-Governor that
189
Enclosure in Busby to Stanley, 39 March 1842, CO 209/19:103, 105. The same argument resurfaced
late in the nineteenth century in the position taken by America as it formulated its position for the Anglo-
American arbitral tribunal in William Websters Claim: see Kingsbury, The Treaty of Waitangi: some inter-
national law aspects in Kawharu (ed), Waitangi, 121, 123124. Eventually in 1925 the Tribunal rejected this
approach, whilst accepting full original Maori sovereignty: (1926) 20 American J Intl L 391.
190
Alan Ward, A show of justice: racial amalgamation in nineteenth century New Zealand (Toronto:
University of Toronto Press, 1973) 60.
most unprejudiced persons would arrive at the conclusion that the first act of aggression
had been committed by the Europeans.191 Consequently Ngati Toa were spared the
full and vengeful wrath of English law.
Nonetheless, the Wairau incident sparked considerable debate within the young
colony as to the applicability of English law to Maori. Although both chiefs had signed
the Treaty, Te Rauparaha twice in fact, the Attorney-General insisted that neither could
be said to have given their intelligent consent to it. It was, he said, now well known that
in common with many others, they had not the most remote intention of giving up their
rights and powers of dealing, according to their own laws and customs, with the members
of their own tribes, or of consenting to be dealt with in all cases according to our laws.192
Within the colony, Swainsons Marshall-like notion of a subsisting and limited tribal
sovereignty initially received a cautious official response.193 Its notion of an area in which
settlement was not permitted and native chiefs maintained their customary authority
also had echoes of British policy and practice in the Royal Proclamation era. Whatever
the germ of his position, however, it soon received short shrift from London.194 The
Colonial Office viewone generally shared with the humanitarian lobbywas that the
best protection of Maori interests came from their status as British subjects and the pro-
tective mantle of Crown prerogative. Crown sovereignty, once asserted, meant that
English law was thoroughgoing, certainly in matters of criminal law. The answer, James
Stephen insisted, was not in the rigid so much as selective application of English law:195
These people may be the Queens Subjects without being subject to the Law of England. I know
not what hinders the Enactment of a Law declaring that in all their dealings and relations with
each other they shall still live under Native Law and Native Custom, with an exception only of
such Customs as are directly opposed to the universal Laws of morality; as for example
Cannibalism and Human sacrifices. This may not be a perfect solution; but I believe it to be the
best possible solution of this difficulty.
An exasperated Stephen repeated this observation several weeks later when he stated
that he did not know why the Native New Zealanders might not be permitted to live
among themselves according to their National Laws or Usages, as is the case with the
191
William Spain to Acting-Governor Shortland, 28 June 1843, enclosure in Shortland to Stanley,
13 July 1843, CO 209/22:271, 280.
192
Attorney-General Swainson to Shortland, 27 December 1847, CO 209/16:487; opinion of
13 July 1843, enclosure in Shortland to Stanley, 13 July 1843 (no 2), CO 209/22:245, 285293. See also his
Report on Wairau Affair, 7 August 1843, CO 209/22:370. Also see the passages in NA Foden, New Zealand
Legal History (16421842) (Wellington, NZ: Sweet & Maxwell, 1965) 97.
193
Shortland to Stanley, 31 December 1842, CO 209/16:446 (declining to accept Swainsons opinion,
preferring that of George Clarke, then Protector of Aborigines, and awaiting Stanleys response). But see the
opinion of Attorney-General (later Chief Justice) James Prendergast, 30 June 1869, reprinted in HH Turton
(ed), An Epitome of Official Documents relative to Native Affairs and Land Purchases in the North Island of New
Zealand (Wellington: Government Printer, 1883) Part A, 191194, esp 192.
194
Stephen to May, 19 May 1843, CO 209/16:446: . . . the local attorney Genl wholly omits to notice that
by three formal commissions under the Great Seal of the United Kingdom, and by every other formal and
solemn act, the Queen as now publicly asserted Her Sovereignty over the whole of the New Zealand island.
Admit, if it must be so, that this was ill-advisedunjusta breach of faithand so on, yet who can gainsay
that such are the claims of the Queen and of the Nation for whom H.M. acts. Hope and Stanley initialled
their agreement, ibid 455. Also Stanley to Shortland, 21 June 1843, CO 209/16:456.
195
Stephen to Hope, 19 May 1843, CO 209/16:455.
Aboriginal races in other British Colonies . . . .196 Those administering English law
should do it without hindrance by the spirit of legal pedantry from which no English
society is ever emancipated, and by the contempt and aversion with which the
European race everywhere regard the Black races.197
The Native Exemption Ordinance 1844 put that policy into operation. It applied to
criminal offences by Maori committed outside the limits of a town.198 Where the
dispute involved Maori parties only, the assent of the Protector of Aborigines was
necessary before a warrant could issue. He, in turn, would liaise with the relevant
chiefs, who would receive compensation if they agreed to the criminal proceedings.199
Settlers were hostile towards this exemption of Maori from English criminal law.200
The chiefs quite properly saw it as reinforcing rather than challenging their mana. To
them it signified their exception rather than subjection to English law.
In New Zealand Governor George Grey successfully solicited suspension of the full
application of the imperial legislation201 and ensuing instructions (1846) which
allowed the setting apart of districts wherein Maori custom would operate.202
Unwilling to have settlers even notionally amenable to tribal law, he sent Resident
Magistrates into Maori areas to adjudicate on Maori offences and civil matters with the
assistance of tribal assessors.203 These modifications of the British law were, he told the
Legislative Council, at the same time calculated to accustom [Maori] by degrees to
take an active part in the administration of the laws of their country.204 For Grey,
Crown sovereignty was all.
A few years after the Wairau affray, an imperial statute, the New Zealand
Constitution Act 1852, authorized the proclamation of districts within which Maori
custom would run.205 This power was never used,206 although, like the 1846 statute, it
plainly contemplated a Marshall-like approach towards the chiefs authority and the
internal viability of Maori custom within specified areas. The difference was, of course,
that this was a consequence of legislative concession rather than judicial subscription
to a common law model of residual tribal sovereignty or exception from English law. In
1861 the Crown Law Officers advised that even if tribal law could regulate Maori
relations inter se within those districts it could not be extended to Europeans.207
196
Stephen to Shortland, 21 June 1843, CO 209/16:457, 458459.
197
Stephen, Minute, 26 February 1846, CO 209/35:47.
198
Native Exemption Ordinance 1844, sections 2 and 6 (with the exception of rape and murder).
199
Ibid sections 45. Where a Maori was convicted for theft trial could be avoided by payment of four
times the value of the goods (sections 6 and 7). The Ordinance was extended the next year to include con-
200
victions for assault with half the fine payable to the victim. Ward, A Show of Justice 6667.
201
The New Zealand Government Act 1846 (UK) 9 & 10 Vict cap 103, sections 2 and 11 proposing
districts which should be set apart and in which such laws, customs, or usages [of Maori] should be so
observed.
202
Ian Wards, The Shadow of the LandA Study of British Policy and Racial Conflict in New Zealand
18321852 (Wellington: AR Shearer, Government Printer, 1968) 387391.
203
Governor George Grey passed the Resident Magistrates Courts Ordinance 1846 as well as the
Unsworn Testimony Ordinance 1846 (allowing a non-Christian Maori to give un-sworn evidence).
204
Sir George Grey to the Legislative Council, 10 October 1846 in The New Zealander, 3.
205
15 & 16 Vict cap 72, section 73. (Interestingly this provision remained in force until 1986.)
206
Lord Grey to Sir George Grey (draft) February 1852 had wondered if there would be any present or
probable necessity for the use of that power: CO 881/1: no 31.
207
Crown Law Officers to Colonial Office 25 June 1861, CO 885/10: no 71, fol 2.
In 1870 Edward Fairfield told the Colonial Office that whilst English law notionally
arrived in New Zealand with Crown sovereignty:208
. . . [t]he natives were, in fact, left as free to follow their own devices as they had been before the
British settlement came to be scattered on their shores. From the foundation of the Colony till
the breaking out of war in 1860, only eleven Writs of Summons had issued out of the Supreme
Court against Maories [sic], and in only one of these cases had the proceedings gone further than
the Writ of Summons. There was one instance of an injunction being moved for against a Maori
Chief, and that had been refused as absurd.
Likewise Governor Gore Browne criticized the fiction that English law applied
throughout the colony:209
English law has always prevailed in the English settlements, but remains a dead letter beyond
them . . . Government has been continually exposed to contempt from being unable to perform
its duty, and has been driven to extemporize, and ignore aggression or crime which it could
neither prevent nor punish.
The answer, he said, lay in giving the Governor more, not less authority and resources
such as those that his predecessor Sir George Grey had had at his command.
Such accounts and the response to the Wairau affray demonstrate how officials dealt
with the notional applicability of English law and the reality of the difficulties in actually
extending it into tribal affairs. English law protected the tribal peoplesor at least it
claimed tobut it also made them amenable to its reach. At least in the first twenty
years of the colony more controversy lay in the theoretical application of English law to
Maori than in the reality of its general non-application.
This policy of the selective application of English law to aboriginal peoples in British
colonies was essentially a mid-century one that was also being applied in other colonies
in Australia and British North America. Governors of colonies were advised to temper
the application of English law to tribal peoples with moderation. In retrospect this can
be seen as a bridge between the legalism of the jurisdictionalism of the seventeenth and
eighteenth centuries and the invasive legislative regimes that appeared in the late
nineteenth.210
In Wi Parata v The Bishop of Wellington (1877) the Supreme Court of New Zealand
dismissed the principle of original Maori sovereignty that the Colonial Office had
stressed during the 1840s. No body politic existed, said Chief Justice Prendergast,
capable of making cession of sovereignty nor could the thing itself exist.211 The court
went beyond Marshalls doctrine of a subsisting but limited tribal sovereignty to a
denial of any original sovereignty whatsoever. That denial of juridical status to the tribe
logically would have meant that Maori were to be considered as individuals and their
form of political associationthe tribeno more than a mere collection of individuals.
Yet later in the judgment that status as individuals and its necessary concomitant,
British subjecthood, were implicitly denied. Relations between Crown and Maori
were, he said, to be regarded as acts of State, and therefore are not examinable by any
208
Edward Fairfield, The New Zealand Question, 13 April 1870 in Confidential Print CO 881/2: no 8, 7.
209
Governor Gore Browne to the Duke of Newcastle, 1 November 1860, GBPP 1860, XLVII (552) 393, 394.
210
See Damen Ward, A Means and Measure of Civilisation: Colonial Authorities and Indigenous Law in
211
Australasia History Compass 1 (2003) AU 049 001023. (1877) 3 NZ Jur (OS) 72 (SC), 77.
Court.212 The Chief Justice had applied the non-justiciable principle of the early
nineteenth-century East Indies case-law to the New Zealand context, paradoxically
depicting Maori as though they were engaging in fact with the Crown as sovereign-
to-sovereign whilst simultaneously denying them that legal status originally as well as
residually. Although consistent with the general principle of the time denying status to
aboriginal polities and rights,213 that position controverted the by then long-established
rule that there could be no act of state by the Crown against its own subjects.214
However, his approach seemed nonetheless to have recognized the reality of Maori
political organization and Crown dealings with the tribes. Arrangements between
Crown and Maori tribe, specifically agreements attaching to the cession of land,
although not to be regarded as properly a treaty obligation, [were] yet in the nature of
a treaty obligation. This result, one which left Maori with the status neither of sover-
eign tribes (or at least recognized political entities) nor as individuals with the rights of
British subjects, constituted an extraordinary branch of the prerogative which arose ex
necessitae rei.215 By those means the Chief Justice was able to underline his holding that
in the case of primitive barbarians, the supreme executive Government . . . of necessity
must be the sole arbiter of its own justice.216 These were precisely the same words used
by Justice Johnson forty years earlier in Cherokee Nation v Georgia.
It should be added that the stance adopted de jure did not necessarily reflect colonial
conditions de facto. For example, the journal of Henry Sewell, an English lawyer sent
out to represent the Canterbury Association who became an eminent local politician
(including being Premier for a few days in 1856), recorded numerous incidents
highlighting the difficulty in translating the legal theory into reality. The Maori tribes
were a vital and disputatious lot, hardly likely to abandon their customary ways
because of Pakeha legalities. For most of the nineteenth century the central North
Island remained territory in which the royal writ ran no more than notionally. In the
end the building of roads and railway were the true form of aggression upon native
territory.217 If anything Wi Parata highlighted that gulf between the legal fiction of
all-encompassing Crown sovereignty and the reality of tribal authority and mana.
The obstreperous Old Settlers who wrote to the Bay of Islands Observer were but the
first of a long line of colonial inhabitants who noted that gap between treating Maori
as if they had rights as political entities led by chiefs and the legal denial of it. Maori also
noticed the gap. Land was, of course, the source of this discontent, especially as access
to it was based upon the Crowns exclusive (or pre-emptive) right to acquire land from
the tribes. Even Governors like Sir George Grey, who used that power aggressively,
could not quench the demand as the settlersand, frequently Maori (who regarded
the Crown as the biggest land-jobber of all)argued for the capacity of chiefs to cede
a valid title directly to settler purchasers. As the Supreme Court stressed in Symonds,
that rule had been designed both to protect Maori from sly speculators and to ensure
212
(1877) 3 NZ Jur (OS) 72 (SC), 79.
213
For another New Zealand example Archdeacon Hadfield asked the Duke of Newcastle in a letter
(29 May 1860) are chiefs to be debarred from all right to defend their titles in a competent court of law?
In BPPColoniesNew Zealand, Vol 12 (Sess 1861) 248, 249.
214 215
Entick v Carrington (1765) 19 St Tr 1030 (CP). Ibid.
216 217
Ibid 78. Journal of Henry Sewell, II, 276.
orderly European land titles. For over twenty years, settler, Maori, churchman, and
speculator railed against the pre-emptive rule and its foundation in a sense of Maori
juridical incapacity. Yet imperial and colonial officials would not budge. The power to
alienate land, Richmond the colonial Minister for Native Affairs told the Lord Bishop
of Wellington in 1860, is the offspring of a highly artificial state of society. He added
that its exercise in the endowment of religious bodies, has by every civilised state been
rendered subject to jealous restrictions, evere [sic] when the intending donors are
persons sui generis, which the natives can scarcely be considered to be.218
Despite the ill-will that its principles generated, the judgment in Wi Parata reflected
the received position in New Zealand and other British colonies of the same period. It
prevented Maori recourse to the courts to vindicate the aboriginal property rights
guaranteed under the Treaty of Waitangi, leaving that role to the Crown as their legal
protector. The Privy Council was later to recognize original Maori sovereignty,219 but
this made little difference to the justiciability of their aboriginal claims. Whatever
rights Maori held subsequent to Crown sovereignty were regarded judicially as arising
from statute rather than the common law.220 New Zealand courts thus reached the
same position as the Canadian and the Australian.
(e) British Columbia

British settlement of the western coast of the American continent began in the 1840s.
Once the Oregon Treaty between Britain and the United States (1846) had settled the
boundary question in the west, the Hudsons Bay Company was prevailed upon to
form a settlement colony on Vancouver Island in order to cork any northward push
from the burgeoning republic. The Companys charter of 1670 did not extend to the
coastal area and so a charter was issued for settlement on Vancouver Island (1849) (at
what became Fort Victoria).
The formation of a new British colony followed on the heels of the annexation of
New Zealand, the experience of which influenced practice in the Pacific north-west. By
that time the humanitarian influence was waning and colonial policy was more
amenable to the corporatist elements it had resisted in New Zealand. James Stephen,
on the verge of retirement, successfully parried the proposal to grant the entire Oregon
Territory to the Company and refused, as he had in the South Australia and New
Zealand settings a decade before, to countenance a proprietary or corporate form of
governance. These were now anachronistic, he felt, and the only type available was the
representative Crown colony form that had been refined over nearly a century.221
Nonetheless despite the resistance to ceding all control to the Company, the Colonial
Office was still able tacitly to adopt a version of the Marshall doctrine of discovery such
as City interests had urged years before in the New Zealand setting. There was no insis-
tence upon obtaining a cession of sovereignty from the hwulmuhw (people of the land)
after the manner of the Treaty of Waitangi. The British overlooked this matter and
218
CW Richmond, Minister for Native Affairs, to the Lord Bishop of Wellington, 2 July 1860.
219
Hoani Te Heu Heu Tukino v Aotea District Maori Land Board [1941] AC 308.
220
PG McHugh, Aboriginal Title in New Zealand Courts (1984) 1 Canterbury L Rev 235.
221
James Stephen, Minute, 8 March 1847 in CO 305/1:59.
based their sovereignty upon the Oregon Treaty, a sign not only of James Stephens
retirement but that broader international interests would out-trump the tribal. The
1849 charter itself as well as the Colonial Office and Company headquarters made the
usual avowals of protecting the tribes welfare and bringing them the benefits of
British settlement. The formal grant simply recited that it would conduce
greatly. . . to the protection and welfare of the native Indians residing within that
portion of our territories in North America called Vancouvers Island, if such island
were colonised under aegis of the Hudsons Bay Company.222 The use of the term our
territories showed that the Crown already regarded itself as sovereign of the island
and its inhabitants.
In this new colony the corporatist elements that had been suppressed in New
Zealand a few years before now took stronger profile.223 In large part that was due to
the influence of Governor James Douglas, a man of immense physical as well as polit-
ical presence.224 Once the ineffectual first Governor, Richard Blanshard, had been
seen off, Douglas, Chief Factor for the Company, took office and for a good while rep-
resented both Company and Crown. Blanshard had treated hwulmuhw as a force to
be overwhelmed by military might, an approach that Douglas, well-versed in the
dynamics of the coastal fur trade, deplored. Douglas never doubted that under the
charter of 1849 English law applied to hwulmuhw and that the tribes were to be
treated as British subjects. Secretary of State Sir George (later Earl) Grey had written
to him acknowledging that the Law of England for all Criminal and all important
Civil purposes is without doubt in force in the island [Vancouver] but its enforce-
ment was up to his judgment and discretion.225 Like his equally canny and manipu-
lative colleague in New Zealand, Sir George Grey, Douglas realized that the manner
in which it was made to apply in matters of criminal law especially was key.226 It was
not a question of technical amenabilityfor that was beyond doubtso much as a
matter of modulation, as James Stephen had reminded colonial officials throughout
the 1840s. Douglas accepted the notion of Crown trusteeshipas his policy on
extinguishment of aboriginal title demonstratedand the role of the Crowns repres-
entative as being placed between aboriginal subject and settler. That was a role that
became harder to sustain as the colony grew and the conflict of interest with his
Company position more plain.
222
Text in Despatches and Papers relating to Vancouvers Island and the Hudsons Bay Company in
GBPP (1849), no 227, vol XXXV, 13, 15.
223
The land purchases in New Zealand were used as a template by Douglas: Hamar Foster, The
Saanichton Bay Marina Case: Imperial Law, Colonial History and Competing Theories of Aboriginal Title
(1989) 23 University of British Columbia L Rev 627; Chris Arnett, The Terror of the Coast: Land Alienation
and Colonial War on Vancouver Island and the Gulf Islands, 18491863 (Burnaby, BS: Talonbooks, 1999)
3038.
224
See Robin Fisher, Contact and Conflict: Indian-European Relations in British Columbia, 17741890
(Vancouver: University of British Columbia Press, 1977) 54. The Company took the position that the New
Zealand Company had advocated and which the 1844 Select Committee on New Zealand had urged. This
was the view of the aboriginal title as extending only to those lands actually occupied by the tribal inhabitants.
225
Sir George Grey, Secretary of State, to Governor James Douglas, 5 April 1854, CO 305/5:193, 197.
226
The model of Sir George Grey (the colonial Governor, not to be confused with the Secretary of State
who shared the same name) was held up for Douglas by Lytton, Secretary of State, letter, 30 December 1858
in Papers Connected to the Indian Land Question at 15.
The charter of the Company was surrendered in 1858 when the British government
passed an Act establishing direct rule over Vancouver Island and the mainland colony (for-
merly New Caledonia and now British Columbia).227 With the termination of the
Hudsons Bay Companys control Douglas also relinquished his ties with the Company.
The formal instruments issued to Douglas in 1858 made no reference to Indian policy;228
however his general instructions from Lytton advised him to find the best and most
humane means of dealing with the aboriginal inhabitants. The instructions deferred
entirely to his assessment of the best means of managing aboriginal policy. The prevention
of affrays between settlers and natives was of so local a character that it must be solved by
your knowledge and experience, and I commit it to you in the full persuasion that you will
pay every regard to the interests of the Natives which an enlightened humanity can sug-
gest.229 He was told that the feelings of this country would be strongly opposed to the
adoption of any arbitrary or oppressive measures towards the tribal inhabitants and that
sufficient land should be reserved for them, but otherwise he was given a free hand.
There was no attempt by the Colonial Office to control native policy in British
Columbia such as it had insisted in the Canadas, New Zealand, and southern Africa.
By the time of the gold rush in the mid-1850s and the erection of a second colony on the
mainland, Douglas had kept such a tight and sure-handed rein on Indian relations that
there was no question of the Colonial Office clawing back control of an area that in
other colonial jurisdictions it was on the verge of ceding to local control. He had shown
himself adept in the public display of the even-handed administration of the criminal
law, as, indeed, in the management of Indian affairs at large. Indeed, some ill-disposed
settlers thought him a better manager of Indians than settlers. Douglas example, like
that of Sir George Grey, undoubtedly contributed to the willingness that appeared in
London in the late 1850s to relinquish control of native policy to the men and law-
makers on the spot. In 1861 the colony requested money to extinguish Indian land
titles. The Duke of Newcastle declined, stating that while he was fully sensible to the
great importance of purchasing without loss of time the soil of Vancouver Island . . . the
acquisition of title is a purely Colonial interest, and the Legislature must not entertain
any expectation that the British taxpayer will be burthened to supply the funds.230
Plainly this was the old insistence that colonies were to be self-supporting, a grumble
about financial stringency that was particularly strong at that time when British
military resources were stretched everywhere across the Empire. In addition imperial
officials did not regard it as their obligation to defray the expenses of government in a
colony flush with gold.231 The ease with which that position was taken, however, also
reflected the extent to which native policy was now regarded as a local matter de-coupled
from imperial control.
227
An Act to provide for the Government of British Columbia, 21 & 22 Vict cap 99. Section 2 allowed
the Governor direct rule over the mainland colony, ensuring no repetition of his unlawful assumption of gov-
ernment in Vancouver Island without a representative assembly. The Act gave the Crown the power by Order
in Council to erect a local legislature (section 3).
228
Letters patent under the Great Seal and Instructions under the Sign Manual (1858) in GBPP (1859),
no 2476, vol xvii, 38.
229
Sir EB Lytton to Douglas, general instructions, 31 July 1858, ibid 44, 45.
230
Duke of Newcastle to Douglas, 19 October 1861, in Papers Connected to the Indian Land Question, 20.
231
Fisher, Contact and Conflict 159.
In the long run that detachment frayed in British Columbia the thread of continu-
ity that had been running through governmental relations in the colony and with
aboriginal societies in other parts (except Australia). Crown sovereignty over
hwulmuhw was erected without reference to their consent and treated as absolute in
character, a pattern not unlike that taken in Canada in the 1820s and 30s when Crown
sovereignty was based on the Treaty of Paris (1763) rather than actual submission by
the First Nations. There was an early recognition of aboriginal title when Douglas was
Governor (until retirement in 1864), a pattern that was again consistent with the
Canadian as well as New Zealand one. After that aboriginal land policy did not follow
the pattern of cession or individualization of the other North American jurisdictions
and New Zealand.232 In British Columbia, as in the other British colonies, the
management of aboriginal affairs remained a matter of high executive discretion, but
that discretion had been less subject to review by London during the 1850s. So long as
Douglas had access to Company assets he had financial leverage with which to negoti-
ate land cessions (all of which were on Vancouver Island) on the New Zealand tem-
plate. But once that went he found imperial authorities would not supply the financial
wherewithal and the settlers refusing also to dig into their pockets for a matter they
regarded an imperial responsibility (provision of land for settlement). Joseph Trutch,
the powerful Chief Commissioner of Lands and Works under Governor Frederick
Seymours administration, followed an aggressive policy of removing aboriginal own-
ers from their land, leaving them with minimal reserves. Governor Seymour and his
successor Anthony Musgrave condoned the actions of this administrator who
effectively drove Indian policy in the colony, not least because of its popularity with the
settler community.233
As British Columbia negotiated for entry into the Confederation, Indian leaders
hoped for an extension of the treaty system applied east of the Rockies. When the colony
joined (1871), aboriginal rights were mostly kept out of the picture234 except for article 13.
It stated that the charge of the Indians, and the trusteeship and management of the lands
reserved for their use and benefit, shall be assumed by the Dominion Government, and
a policy as liberal as that hitherto pursued by the British Columbia Government shall be
continued by the Dominion Government after the union. The Terms of Union recog-
nized the Dominions special constitutional responsibility towards First Nations.
However, there was a perverseness in the apparent implication that the British
Columbia policy was more liberal than the Canadian. Trutch, now the provinces first
Lieutenant-Governor, was delighted it preserved the pre-Confederation ways.235
232
Robin Fisher, Joseph Trutch and Indian Land Policy, in J Friesen and HK Ralston (eds), Historical
Essays on British Columbia (Toronto: University of Toronto Press, 1976) 266.
233
Seymour and his successor Musgrave had a hands-off attitude towards Indian affairs, leaving Trutch
at the helm: Fisher, Contact and Conflict, 160174.
234
Indians were disappointed that entry into the Confederation made no provision for them. Indian
affairs barely cropped up in the negotiations surrounding British Columbias admission. The British
Columbia legislature defeated 20 to 1 a motion for the protection of Indians whilst a second motion proposing
to extend Canadian Indian policy to British Columbia was withdrawn. John Robson, premier of British
Columbia from 18891892, had moved the second motion hoping for the extension of the Canadian system
of appointing Indian agents to manage Indian interests. As a result, the Terms of Union for British Columbia
235
contained no reference to Indians: Fisher, Contact and Conflict, 176. Ibid 177.
His native policy, with its wilful disregard for aboriginal rights and refusal to go
through even the motions of recognition of aboriginal title, has been a controversial
and heavily criticized legacy. His aggressive policy of assimilationwhich also
involved corralling aboriginal peoples onto small, out-of-the-way reserves for their
own protectionwas consistent with settler designs. Once local legislatures of all
jurisdictions started passing laws for the management of aboriginal affairs they
followed aims very similar, indistinguishable indeed, from those of Trutch.
***
During the eighteenth century there emerged the notion of a Crown trusteeship
over non-Christian people; however the character of that trusteeship was initially as
vague as the nature of Crown sovereignty itself. The position initially taken was that the
princely states of India and the North American tribes remained distinct political
entities under their own laws, at least in their internal relations. That model of retained
political status was also applied in Australia, southern Africa and, briefly but ineffectu-
ally, in New Zealand. It contemplated aboriginal tribes as lying outside the ordinary
jurisdiction of colonial law in their internal affairs where their indigenous law
continued to operate. During the second quarter of the nineteenth century that model
was eventually rejected in all the British jurisdictions although in the United States it
was recognized by the Marshall Supreme Court in the Cherokee Cases of the 1830s.
Those cases characterized the independent tribes of America as domestic dependent
nations with a vestigial sovereignty entitling them to continue to govern themselves
under tribal law. The Colonial Office and humanitarian movement were hostile to this
approach and insisted that Crown sovereignty did not bring the tribes under a mere
Crown protection that left intact their customary political forms and legal ways.
Crown sovereignty made them amenable to English law in all matters, criminal in
particular. The notion of Crown trusteeship therefore moved from an earlier form in
which it mostly meant the protection of tribal peoples as organized societies and allies
under protection or simply beyond colonial jurisdiction. This was an approach
reflecting the actual political condition of the highly various native polities at the
timetheir strategic importance in Canada, their vitality to revenue collection in the
East Indies, their peripherality in Australia, their dominance in New Zealand.
Although not cast in the same juridical terms, it was also consistent with the approach
of the Cherokee Cases. But as British control of their territory consolidated, so did the
new model of thoroughgoing Crown sovereignty become easier to apply. A more exclusive
and acute notion of Crown sovereignty emerged, one unprepared to tolerate the
imperia in imperio that the older approach had countenanced. The model in place by
the mid-1840s was now one in which the trusteeship was over aboriginals as a collec-
tion of vulnerable individuals, all subject to English law and about to become
civilized.
According to the notion of trusteeship formed during the second quarter of the
nineteenth century, relations between the Crown and aboriginal peoples were an
aspect of the prerogative. This made the relations inherently political in character, the
Crown alone holding the legal capacity to represent the tribal or collective interest. The
ejectment of squatters from aboriginal land and protection of aboriginal land from
wandering stock were two issues of immense importance in colonial British North
America and New Zealand. Yet these were legally regarded as matters for the Crown and
its officers charged with protecting the aboriginal peoples interests. In those situations,
aboriginal peoples could not themselves bring proceedings to protect their collective
rights. The Crown was the legal guardian of aboriginal peoples with the legal standing to
protect the rights held by aboriginal peoples as a group. Special officers were appointed to
protect their interests in the field, courts, and towns. Tribe members were subject to
English law in all matters, especially criminal and, notionally, even their civil affairs.
Imperial and colonial authorities did not regard this subjection to English law as oppressive
or limiting but vital to their protection and eventual introduction to civilization.
However, as Governor Hutt of Western Australia had indicated, the logical corollary
of that amenability was that English law governed all tribe members affairs, including
marriage and land-ownership rather than simply being a matter of criminal jurisdiction.
As it was, that scenario was hardly tested in the early Victorian period when manage-
ment of aboriginal matters remained with the Governor and London. When London
abandoned the control of native policy those protective duties were transferred to the
colonial legislatures. The legal regime these authorities inherited was thus largely
inspecific in that it was premised upon a vague notion of guardianship that had been
erratically and unevenly applied, mostly through the ineffectual offices of Protectors. It
was hardly surprising that once jurisdiction over native affairs was granted to them, the
colonial legislatures set about erecting more precise statutory regimes informed by
what they regarded as best for the tribes and, it need hardly be added, themselves. In
1842 Governor Hutt had taken for granted the integrity of tribal culture, but a
generation later that was the very feature that the colonial legislature, assuming the
trustee mantle, would attack. This legislation gave the vague sense of guardianship that
had applied in Colonial Office days a more robust juridical form based on the policy of
assimilation as well as setting procedures to make native land available for settlement.
In the first half of the nineteenth century, the 1830s to 1850s in particular, the impe-
rial authorities assertion of a guardianship role had been as much about the domestic
politics of accommodating the strident humanitarian movement as the actual condi-
tion of aboriginal people. That pressure had lessened considerably by the 1860s when
colonial legislatures obtained jurisdiction in the field. But the rhetoric of protection
remained even after the transmission of jurisdiction. It was now issuing from different,
more local, and vastly less disinterested mouths.
6. The encroaching Empire(s) of Uniformity: native polities under legal

siege from the mid-late nineteenth century
During the second half of the nineteenth century the subjection and control of
aboriginal peoples became the dominant theme of the jurisprudence of North America
and Australasia. Those themes were the archetypal end of positivist or formalist legal
method with its emphasis upon prediction and control. Positive law articulated the
prevalent liberal belief in the capacity of the native to assimilate into the general civilized
population. There was a clear and growing belief during the second half of the
nineteenth century that laws could and should set up mechanisms for that process of
cultural transformation. This is not to say, of course, that the aboriginal peoples were
tamed by legal positivism, so much as to observe the assistance and timeliness of its
influence in accomplishing that juridical containment.
From the late nineteenth century there began to grow a body of case-law on aboriginal
rights. This begun the formation of a corpus of law in the modernist sense of the
growth of doctrine. From an earlier period, where aboriginal relations were conceived
as a matter of high prerogative for the discretion of the metropolitan authorities,
litigation to an appellate level now became a more regular feature in New Zealand and
Canada. This willingness of the aboriginal peoples of those jurisdictions to resort to the
courts was doubtless a consequence of their sharpened perception of their status as
subjects of the Crown. The United States had established its litigious pattern fifty years
earlier, though there the tempo also increased considerably during the late nineteenth
century. As important, however, as the practice of the courts was the wider national
political culture wherein the notion of sovereignty itself was becoming more heavily
juridified and positivized, and where law was being used more aggressively as a vehicle
for social and cultural transformation.
In the mid- to late nineteenth century the demand for aboriginal land was at its most
feverish pitch. The settlers vociferous demands for land occupied by the indolent
aboriginal peoples coincided with the high period of Euro-American state nationalism,
a development brewing the positivization of sovereignty into a modern liberal
democratic form. The notion of sovereignty which was hardening in Anglo-American
jurisprudence was drawn both from international and domestic political experience. It
was one that positivistically stressed the unified and centralized location of ultimate
constitutional authority. The state was Leviathan presiding over its Empire of Uniformity
wherein alternative sites of political authority were not to be tolerated. The American
courts may have already committed themselves to a divided sovereignty twixt govern-
ment and tribe; however they now glossed that with a more recent doctrine of
Congressional plenary power. Congress, the courts now held, had an overriding legisla-
tive authority allowing it to abrogate treaties and extinguish tribal rights (such as the
aboriginal title). This new development reflected the Austinian idea of an ultimate or
paramount sovereign and, in reaching it, the Supreme Court converted what was no
more than a perceptionlargely an inaccurate oneof Congressional practice into
constitutional doctrine. In New Zealand the courts simply denied the Maori tribes any
original as well as subsisting juridical status, an approach also taken in Canada (although
the courts were more ambivalent there on the question of subsisting tribal property
rights). Nationalism and liberal democracy pervaded legal doctrine. By positivizing
sovereigntyby setting what had been a fluid, historically contested, and contestable
concept into a hardened legal form requiring an ultimate constitutional authoritythe
traditional political forms of the tribal peoples were juridically eliminated.
In England itself Albert Venn Diceys famous and highly influential236 work The
Law of the Constitution (1885) showed the extent to which the positivizing tendency
236
For instance John F McEldowney, Dicey in Historical PerspectiveA Review Essay in P McAuslan
and McEldowney (eds), Law, Legitimacy and the Constitution (London: Sweet & Maxwell, 1985) 3961;
M Loughlin, Public Law and Political Theory (Oxford: Clarendon Press, 1992) 2122 on the influence of
Austin and Diceys authority.
that had been heralded by Austin237 (1832) had matured. Neglected in his own time,
Austins moment had now come. Diceys account was hardly aimed at the indigenous
peoples of the British Empire but it was the most significant expression of the common
laws positivization of sovereignty. Its consequences for Crown sovereignty in the
colonies were clear. Dicey distinguished legal from political sovereignty, the former
being a rigid set of legal rules pedestalling the ultimate and unimpugnable authority of
the Crown-in-Parliament (being Westminster, the Mother of Parliaments). Political
sovereignty represented what had come to be known as popular sovereignty, the
authority conferred upon the ruler by the ongoing consent of the people. Diceys
formulation sought to reconcile the hierarchical with the popular elements of the
British constitution. This was a tension that the Glorious Revolution (1688) had
hardly resolved so much as housed. The Revolutionary Settlement essentially replaced
one professed absolutist power (a monarch alleging the Divine Right of Kings) with
another (Parliament). It was also a tension that had been radically exposed by the
American Revolution, and resolved by the Founding Fathers who vested sovereignty in
the people. Nonetheless Diceys work showed how what had formerly been a broad
discourse concerning the nature of political authority in Britain, a discourse layering
legal and other languages, had been reduced by lawyers into doctrinaire Austinian
absolutism.
After Dicey the common law notion of Crown sovereignty was now rigidly divided
into legal and political zones. The legal side was ring-fenced and rendered indisputable
by the late Victorian common lawyers who took the baton from the great Whig histori-
ans of the generation before. These historians had produced epic accounts of a
Parliamentarily-blessed nation whose representative institutions blazed a trail of histori-
cal glory through the centuries.238 In addition lawyers were organizing as a disciplined
and university-trained profession with a system of organized law reporting and a much
more clearly articulated doctrine of precedent.239 In the academy law had recently sepa-
rated from history, meaning that ways of thinking which once were indistinguishable
at once legal and historicaland which had facilitated the earlier broader discourse on
the nature of political authority were now different disciplines. There was by the late
nineteenth century a legal notion of sovereignty doggedly apart from that which those
outside the strict common law parameters conceived sovereignty to be. One arena
might have had a dynamic element to itthe political onebut the other embodied
un-negotiable common law premises shoring up the authority of the Crown. This was
Diceys legacy. He put the legal sovereignty of the Crown into an ahistorical zone where,
like the power of the Christian God, it radiated eternally beyond historical validation.
237
For Austins great influence on Dicey see RA Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian
Jurist (London: Macmillan, 1980) 70.
238
See JW Burrow, A liberal descent: Victorian historians and the English past (Cambridge: Cambridge
University Press, 1981), and James Vernon, Narrating the constitution; the discourse of the real and the
fantasies of nineteenth-century constitutional history in Vernon (ed), Re-reading the constitution: new nar-
ratives in the political history of Englands long nineteenth century (Cambridge: Cambridge University Press,
1996) 204.
239
See Jim Evans, The Doctrine of Precedent During the Nineteenth Century in L Goldstein (ed),
Precedent in Law (Oxford: Clarendon Press, 1987) 35, especially 6472 noting this as a product of the
positivization of common law method heavily influenced by Bentham and Austin.
During the last half of the nineteenth century more specific legal regimes were
established to replace the vague guardianship that London and its Governors had
recently and (in colonial eyes) ineffectually applied. In North America and New
Zealand continued recognition of the aboriginal property rights of the tribal nations
was now regarded as an initial but essentially transitional step. Native people were
expected to achieve full legal and political equality through the adoption of individual
land-ownership. This had political overtones as well as reflecting the assimilation
policy. Individual property ownership would enfranchise the de-tribalized individual
with the full set of civil and political rights of the British subject. This calculated attack
on tribalism also had the not unrelated benefit of taking land out of native ownership.
Americas Indian Commissioner Crawford had mooted the policy of individualization
as early as 1838. He said:
Common property and civilization cannot co-exist . . . At the foundation of the social system lies
individuality of property. It is, perhaps, nine times in ten the stimulus that manhood first feels.
It has produced the energy, industry, and enterprise that distinguish the civilized world, and
contributes more largely to the good morals of men than those are willing to acknowledge who
have not looked closely at their fellow-beings . . . If . . . the large tracts of land set apart for them
[the Indian nations] shall continue to be joint property, the ordinary motive to industry (and the
most powerful one) will be wanting240
That sentiment and theme of individual property ownership endowing a man with
social, economic, and political standing recurred regularly through North America and
Canada in the late nineteenth century.
(a) British colonies

By the mid-nineteenth century British colonial law and practice had left the
jurisdictionalism of earlier times for a more thoroughgoing notion of Crown sover-
eignty precluding aboriginal tribes and individuals any vestigial juridical status. That
practice did not necessarily match the reality of colonial politics of the time: in Canada
during the mid- and late nineteenth century official treaty-making continued in the
western prairies, in particular the Numbered Treaties of the prairies signed between
1871 and 1905. Until the end of that century New Zealands central North Island,
despite the denial de jure of tribal sovereignty, was de facto an autonomous zone gov-
erned by Maori chiefs, and though these tribes were denied juridical status the region
was to all intents and purposes treated as such in the practice of the Anglo-settler
state.241 Thus even whilst the legal dogma of Canada and New Zealand was denying
the status of the aboriginal nations de jure, colonial officials were still finding them-
selves required de facto to recognize the traditional forms of political organization. The
conferral during the mid-nineteenth century of legislative competence over native
policy resulted almost immediately in the Anglo-settler colonies attacking the political
organizations of aboriginal peoples, most especially in Canada and New Zealand
240
Indian Commissioner Crawford, Annual Report of the Commissioner of Indian Affairs, 25 November
1838 in Prucha (ed), Documents, 73, 74.
241
J Belich, The New Zealand Wars and the Victorian Interpretation of Racial Conflict (Auckland: Auckland
where the native problem was more pressing than Australia. The core of the policy
euphemistically described as assimilation or civilization lay in the dismantling of the
traditional political forms of aboriginal life. These regimes did not envisage any role,
beyond at best a transitional, temporary one, for the indigenous, tribal form of
self-management. Yet somehow those customary forms did survive and adapt in
differing ways that interacted with without succumbing wholly to the legal framework
about them. In the pattern of the aboriginal peoples subjugation lay the shape of their
resistance.242
(i) Canada
Early legislation passed in Canada relating to Indians and their land largely
concerned trespass by settlers and underlined the Royal Proclamation (1763) which
prohibited the direct purchase of land from its native owners. By 1844 the manage-
ment of Indian affairs in Lower as well as Upper Canada243 was entrusted to the
Governors civil secretary (public servants whose presence in Canada coincided with
the tenure of the Governor they served) and had ceased to be a matter of military
control. In 1860 the imperial authorities approved provincial legislation244 which
transferred control of the Indian Department to the provincial government and leg-
islative competence to the provincial legislature. The earlier, post-Treaty of Paris
(1763) military and strategic orientation of the Crowns Indian policy in Canada
changed in the earlymid nineteenth century towards one of subjection and control
orto use the phrase of the timecivilization of the native. Until the 1830s the
course which had hitherto been taken in dealing with these people, observed Sir
George Murray, . . . had reference to the advantages which might be derived from
their friendship in times of war, rather than to any settled purpose of gradually
reclaiming then from a state of barbarism and of introducing amongst them the
industrious and peaceful habits of civilized life.245 From that time civilization
became the dominant theme of Indian policy, a policy largely effected through
superintendents who were Crown officials, responsible to the Governor and,
through him, Colonial Office, for the management and supervision of Indian affairs
on reservations. Acts passed in Nova Scotia in 1842246 and 1859247 appointing a
Commissioner for Indian affairs whose duties included the supervision and
management of reserves were early examples of this assumption of legislative control
by colonial authorities.248
The Gradual Civilization Act (1857) passed by the Assembly of the United Canadas
advanced the belief that civilization could only be achieved through the introduction
of individualized property. The Bagot Commission on Indian Affairs had argued this
242
I use the phrase of Stephen Cornell in The Return of the Native: American Indian Political Resurgence
(Oxford: Oxford University Press, 1988) 7.
243
After 1828 the control of the Indian Department in Upper Canada ceased to be under the military.
244
An Act respecting the Management of the Indian Lands and Property, Stat Can 1860, 23 Vict cap 151.
245
Sir George Murray, Secretary of State for War and the Colonies to Sir John Kempt, Governor-General,
25 January 1830 in Imperial Blue Books, 1834, no 617, 8789.
246 247
Statutes Nova Scotia 1842 cap XVI. Statutes Nova Scotia 1859 cap 14.
248
See PA Cumming and NH Mickenberg (eds), Native Rights in Canada (2nd edn, Toronto: Indian-
Eskimo Association of Canada, 1972) 103105.
in 1844249 but the following year tribal councils had rejected the concept of reserve
subdivision. This meant that qualified Indians would have to be in a position where
freehold tenure was available, or, in other words, enfranchised.250 This Act provided
that a special board of examiners could determine that an application from an
educated, debt-free Indian of good moral character could result in the award of twenty
hectares of land and the rights accompanying it, including the vote.251 As it was, only
a handful of Indians came forward, from whom one application was accepted.252 Also
it is probable the Act was outside the jurisdiction of the Assembly, which, anyway,
obtained power to legislate for Indian affairs in 1860.
At Confederation the British North America Act 1867 gave the federal government
legislative jurisdiction over Indians and lands reserved for Indians. The position of the
Indian people had not detained the founders of the Canadian federation although the
first Prime Minister, John A Macdonald, advocated the policy of assimilation. By then
colonial officials had formed the strong view that the Indian chiefs had blocked the suc-
cess of the enfranchisement programme. The chiefs were depicted as clinging to their
traditional authority so as to shore their status and impede the progress of
civilization.253 As a result the Gradual Enfranchisement Act was passed in 1869. 254 It
provided for the election of chiefs and councillors by all male band members over the
age of twenty-one according to dates, procedures, and other stipulations set by the
Superintendent General of Indian affairs. The council was empowered to pass by-laws
subject to the confirmation of the Governor in Council. These powers covered a variety
of matters best described as municipal in character, ranging from public health,
through cattle trespass and dog pounds to maintenance of roads, and construction of
schools and council houses. The Act established the central principle of Canadian law
for over a century, namely the federal control of on-reservation governance.255
An official of the time described the purpose of the legislation in this way:
The Acts framed in the years 1868 and 1869 relating to Indian Affairs, were designed to lead the
Indian people by degrees to mingle with the white race in the ordinary avocations of life. It was
intended to afford facilities for electing, for a limited period, members of bands to manage, as a
Council, local matters; that intelligent and educated men, recognized as chiefs, should carry out
the wishes of the male members of mature years in each band, who should be fairly represented
in the conduct of their internal affairs. Thus establishing a responsible, for an irresponsible
system, this provision, by law, was designed to pave the way to the establishment of simple
municipal institutions.256
249
Province of Canada, Journals of the Legislative Assembly of Canada, 18445, Appendix EEE, Report
on the Affairs of the Indians in Canada, 20 March 1845.
250
John S Milloy, The Early Indian Acts: Developmental Strategy and Constitutional Change in Ian
Getty and Antoine S Lussier, As Long as the Sun Shines and the River Flows. A Reader in Canadian Native
Studies (Vancouver: University of British Columbia Press, 1983) 56, 58.
251 252
Stat Can, 20 Vict cap 26 (10 June 1857). Milloy, above, 61.
253
Ibid.
254
Act for the Gradual Enfranchisement of Indians and the Better Management of Indian Affairs 1869,
255
Stat Can 1869, cap 6. Milloy, above, 62.
256
Deputy Superintendent William Sprague to Secretary of State Joseph Howe, 2 February 1871; quoted
in W Daugherty and D Madill, Indian Government under Indian Act Legislation (Ottawa: Department of
Indian and Northern Affairs, 1980) 2.
The Indian Act of 1876 was a consolidating measure257 and had national application,
its provisions remaining the most important governing code for Indian peoples and
polities in Canada for nearly a century (until re-consolidated in 1951). The 1876
statute built upon and fortified the earlier laws denying traditional structures of
political authority any inherent legal status. The Act repeated the formula through
which native peoples living on reserves could obtain individual property rights so as to
assume the responsibilities of civic life. First and as noted earlier, their traditional form
of group organization was legally obliterated. The traditional hereditary system of
band government remained supplanted by a statutory elective one, a measure that set
the scene for decades of internecine on-reservation conflict over the two modes of
governance.258 The band was given limited powers of self-management under the
Act259 but these fell far short of self-government. Those curtailed powers were anyway
subject to the supervision of the Crowns officialsits agents who lived on the reserve
and practically controlled most if not all of Indian life on behalf of the Minister. The
Indian Agents managed the land and monies for the Indians (the band council having
limited powers of consent). Under the Indian Act, these czars also had vital roles as the
Ministers representative in the surrender process (alienation of reserve land),
administration of Indian estates, and prohibition of the consumption of liquor.
Indian unresponsiveness to the civilizing features of the Indian Act meant that in
practice the reserves became fiefdoms of the federal Indian Agents. The management
of Indian affairs became substantially a matter at the discretion of the various Agents
administering the reserve, its people, and assets under the shell provisions of the Act. In
that sense the actual on-reserve administration of the Indian Act transformed the
nineteenth-century legal dogma into an eventual grim reality as Indian enterprise and
self-government became de facto as well as de jure severely stifled. The Indian Act may
have recognized a corporate form of Indian governance, but in an elective, non-traditional
mode the effectiveness of which, anyway, was neutralized by the overbearing power of
the Ministers representative, the Indian Agent.
The Indian Acts reduced the territorial First Nations into statutory bands located
on particular reserves. This statutory form of group identity bore no relationship to the
larger nation. Indeed, dissolution of the First Nation into these smaller units was
regarded as a step towards the complete disintegration of the tribal tie. This fragmented
and weakened the First Nation, to the extent that during the twentieth century, Indian
Act bands became the primary form of tribal representation. The Royal Commission
on Aboriginal Peoples (1996) described the impact upon aboriginal politics. In the
case of First Nations . . . one of the effects of the band orientation of the Indian Act has
been to foster loyalties at the level of the local community, at the expense of broader
257
R Bartlett, The Indian Act of Canada (Saskatoon: Native Law Centre, 1980) 45.
258
In Logan v Styres (1954) 20 DLR (2d) 416 (Ont HC) the hereditary chiefs of the Six Nations
challenged the enforced application of the elective mode of government to a reserve at Brantford, Ontario.
Justice King commented that the elective mode had to prevail even though it might be unjust or unfair
under the circumstances for the Parliament of Canada to interfere with their system of internal Government
by hereditary Chiefs (422). See similarly Isaac v Davey (1977) 16 NR 29. For the lack of success of the
elective mode see Bartlett, The Indian Act of Canada, above, 1419.
259
Those powers, after some extension in the 1951 revision and consolidation of the Indian Act, were
associated with those given a rural municipality under Canadian law: Indian Affairs Branch Annual Report
1952 cited in Bartlett, Indian Act of Canada, above, 19.
national affinities arising from a common language, culture, spirituality, and historical
experience.260 For First Nations organized under the Indian Acts, the band had
become ingrained into their identity-practices and politics even as they negotiated
movement into new political structures at the end of the twentieth century.261
(ii) New Zealand

In New Zealand, as in British North America, the Colonial Office had attempted to
retain control of native policy as long as possible. The New Zealand Constitution Act
1852 gave the colony a representative legislature but section 73 of this Imperial Act
specifically preserved the Crowns exclusive right to extinguish the aboriginal title by
purchase or cession from the native owners. The same Act had allowed for the setting
aside of districts in which Maori customary law would apply, but initially Governor
George Grey declined to use this power262 which was clearly founded upon the
established American practice.
As it was, a model that used or, rather, started from Maori custom was established later
by Grey upon his return to the colony. These new institutions were based upon two colo-
nial statutes of 1858, the Native Circuit Courts Act and Native Districts Regulation Act.
Henry Sewell commented in 1861 that It is not government but self-government which
is to be introduced.263 The scheme involved village runanga (councils) under the direc-
tion of Pakeha Resident Magistrates, and district runanga under new officers (styled Civil
Commissioners) empowered to make by-laws. The Pakeha officers were commissioned
as Circuit Court Judges, who, sitting with Maori Assessors, would enforce the laws. The
Resident Magistrates and runanga were also charged with determining tribal, hapu
(genealogical sub-tribe), and whanau (family) interests in land. Once that ownership had
been confirmed by Crown grant they could authorize sale of the land to Europeans.
Colonial politicians made it plain that this system was not based upon nor conceded any
inherent Maori authority. Premier Fox (during his first Ministry) had observed that there
was no objection to Maori making the assent of a principal chief a condition of the
appointment of Magistrates or Assessors provided that the punishing power of the mag-
istrates and the ordinary execution of the law were made to flow from and be dependent
upon the Governor.264 However by this time the King Movement was growing in
strength and within a short time Maori refusal to use the institutions for alienation dis-
credited the system. Nonetheless these new institutions made inroads in some districts,
although Maori receptivity was decidedly ambivalent. By establishing a mechanism for
the making of laws by native runanga enforced through a combination of native and
colonial officials, the system rather anticipated the indirect rule system of British Africa
than followed the enclave reservation model of North America.265
260
RCAP, Restructuring the Relationship (Ottawa: Supply and Services Canada, 1996) II, 235.
261
Val Napoleon, Extinction by Number: Colonialism Made Easy (2001) 16 Canadian Journal of Law
262
and Society 113, 126128. Alan Ward, A Show of Justice, 90.
263
Journal entry of 20 October 1861, quoted by Ward, above, 126.
264
Fox, Memo, 7 December 1861, quoted by Ward, above, 127.
265
The Native Districts Regulation Act Amendment Act 1862, no 39, confirmed that model of native
(by-) law being applied through officialdom. It provided that a majority of the Europeans assembled at a
public meeting could resolve their desire to be brought under the Act (section 5). Upon receipt of the
resolution the Governor in Council was empowered to suspend those parts of the Act that excluded lands
inhabited by the mixed population.
By the late 1850s the Governor was formally conducting native policy on the newly
adopted conventional basis of advice from responsible Ministers drawn from the local
assembly. The resistance of Maori to land sales, organized through the overriding
authority of the paramount chiefs and even in the face of the new institutions, had
culminated in hostilities. As a result the futility of preserving section 73 was plain and
by then, having experienced similar difficulty in retaining control over native policy in
Canada, the Colonial Office was minded to relent. The colonial legislature had pre-
viously passed a Native Territorial Rights Act (1858) but that had been disallowed.
Nonetheless the ineffective Act had established the principle of individualization of
title then also in the air in North America. The Minister for Native Affairs, Richmond
described the purpose of the proposal as being to place in the hands of the Government
a new and powerful instrument for the civilization of the Natives, and by no means to
increase the immediate facilities for the acquisition of land by Europeans.266 The Duke
of Newcastle informed the Governor that the endeavour to keep the management of
the natives under the control of the Home Government has failed.267 He received this
advice, indicating relinquishment had implications for Maori:
. . . considering the meaning which the chiefs and natives of New Zealand have always attached
to the act of submission to the British Sovereign, and the spirit in which they have adhered to that
act, it may fairly be questioned whether or not it is consistent with the honor of the Crown to
hand them over to a totally different authority, namely, an assembly of European settlers,
actuated frequently by adverse prejudices and interests.268
The Duke put such reservations aside and later explained his position to Governor Grey:269
[T]he failure of the system hitherto pursued, and the necessity for abandoning it, arises not from
the neglect of the Home Government to exercise its powers, but from the inadequacy of those
powers, and the refusal of the colonial community to confer, or submit to them. I willing admit
the perfectly constitutional character of that refusal.
This measure was justified by the impossibility of overseeing native affairs at a distance.
What the Duke of Newcastle did, a commentator said soon after (1870), was not to
abandon the control and management of native affairsfor he never had eitherbut
to acquit himself of responsibility for the management of them by other people.270
In 1862 the colonial legislature was given jurisdiction271 to repeal section 73. It
made quick use of the new power. The colonys Native Land Acts of 1862 and 1865
returned to the 1858 model of individualizing title to customary land and by so doing
undermined the authority of the chiefs who had previously used their status or mana
to block sales.
266
Richmond to Governor Gore Browne, 28 September 1858, 1860 AJHR, E-1, 7.
267
Duke of Newcastle to Sir George Grey, 26 May 1862: GBPP 1863 (177) vol XXXVIII 8.
268
Report of W Murdoch and Frederic Rogers (Permanent Under-Secretary, 186071) on management
& c of natives in New Zealand, 1 February 1860, in Confidential Print, CO 881/2.
269
Duke of Newcastle to Sir George Grey, 26 February 1863, ibid, 8, 13.
270
Fairfield, The New Zealand Question (1870) 19.
271
New Zealand Provincial Governments Act (UK) 1862, 25 & 26 Vict cap xlviii section 8. This
included the competence to make any implied repeal of the provision, as by the New Zealand Settlements
Act 1863 confiscating the land of rebellious Maori: In re the Lundon and Whitaker Claims Act 1871 (1872)
2 CA 41.
The 1865 legislation established a Native Land Court with the function of
transmuting the tribal title into individualized tenancies in common (Maori freehold
land). Until that time most formal Crown dealings with Maori about land had been
conducted on a tribal and hapu basis, but the 1865 Act emphasized the title of persons
to Native Land. The policy of individualization was followed aggressively by the court
whose judges, led by Chief Judge Fenton, strongly believed it in the best interests of
Maori.
Section 23 of the Act contained the notorious provision that no certificate of title
could be issued to more than ten persons. It also prohibited a tribe being granted a
certificate of title unless the block of land exceeded 5,000 acres. Few tribal applications
were made in respect of larger blocks of land. Instead, ten or fewer persons made most
applications, but in circumstances indicating they were clearly seen as representatives
of or trustees for hapu. The Native Land Court judges took the position, however, that
no such trusts existed but that the grantees took absolutely.272 The Native Lands Act
1867 had addressed that problem by allowing for the registration by the court and listing
in a recital of the names of all persons interested in such land or of any tribe or hapu
so interested.273 It seems the judges of the Native Land Court regarded that provision
as unworkable and carried on regardless, issuing certificates of title on the basis of the
absolute title of the grantees.274 Meanwhile Maori unhappiness grew and eventually
the Native Equitable Owners Act 1886 was passed allowing the ascertainment of the
excluded owners for land still in the ownership of the grantees or their successors. This
Act did not restore the trust principle, however, as mopping up legislation of later years
made plain. As the Waitangi Tribunal later commented, it merely allowed more
individuals to be included in the individualisation process.275
The Native Land Act 1873 introduced a more extreme version of individualization
that increased the rate of alienation dramatically. Before then, nearly eighty per cent of
investigated title land had remained in native hands under the ten-owners system, an
indication that de facto the trust principle had been recognized.276 After 1873 every
person found to be an owner was to be listed on a memorial of ownership, which, if the
majority wanted, recorded the proportionate share of each. This was the beginning of
the system of fragmented ownership that has affected and afflicted Maori freehold
tenure to this day. Shares in the ownership became alienable, or partition could be
ordered for the benefit of those who wished to sell or lease. The unity that Maori leaders
had ensured under the customary and, to some extent, ten-owners systems was
upended.
The individualization legislation proved a brutally effective means of obtaining
Maori land for white settlement. By the early 1980s Maori freehold land comprised
only 4.5 per cent of New Zealands land area,277 a change from a century earlier when
the first Chief Justice of New Zealand, Sir William Martin, had written that [s]o far as
272
DV Williams, Te Kooti tango whenua: the Native Land Court 18641909 (Wellington, NZ: Huia
Publishers, 1999) 162167. See Timu Kerehi v Duff (1902) 21 NZLR 416.
273 274
Native Lands Act 1867, section 17. Williams, above, 169173.
275 276
Orakei Report (1987) 154. Williams, above, at 167.
277
The Maori Land CourtsReport of the Royal Commission of Inquiry (Wellington: Government Printer,
1980) 2.
yet appears, the whole surface of these Islands, or as much of it as is of any value to man,
has been appropriated by the natives.278
Title to most Maori land had been transmuted by 1909.279 Thereafter the function
of the court grew into a more protective one. In that sense, the Land Court, operating
under its statutory jurisdiction, took up the protective duties formerly vested in the
Crown.280 The court came to depict itself as exercising a quasi-parental jurisdiction
over Maori, especially regarding the alienation of land.281
The laws affecting Maori freehold land did not totally stymie Maori enterprise or
enclose Maori and their land within such an overbearingly paternalistic regime as in
Canada and Australia. Indeed, even in the face of considerable pressure on their cultural
and political forms, Maori resilience and adaptability remained as much a feature of the
operation of the Land Court as its effectiveness at facilitating settler access to their
land.282 However, though the agency of the Maori Land Court had been instrumental
in the sale of much land, the court had been as much the subject of cultural appropria-
tion by Maori as the tool of Pakeha assimilation and land-grabbing. The extent to which
the court maladapted Maori custom and the extent to which Maori poured custom into
the legal mould presented them remain the subject of debate. It is clear, however, that the
court improvised Maori custom in some areas, for example in over-emphasizing take
raupatu (title by conquest from other Maori groups) above other customary sources.283
It also set rules of procedure and evidence that took scant account of Maori custom but
which elevated judicial mana (standing). A well-known example was the 1840 rule
according to which a Maori customary title was to be ascertained from the date of
Crown sovereignty.284 Perhaps the most notable consequence of individualization was
that Maori came to associate tribal standing (turangawaewae) or, more specifically an
individuals rights upon his own marae (tribal meeting place), with entitlement to a
share in Maori freehold land. As a consequence the tenancies in common over Maori
freehold land became severely fragmented, a result which may have served a cultural
purpose but one which also crippled the land administratively.
Individualization of the title to Maori customary land as introduced in the late
nineteenth century was a New Zealand version of the allotment practices being
278
New Zealand PP 1890, G 1, 3.
279
See Introduction to the Native Land Act 1909 (probably written by Sir John Salmond).
280
See DV Williams, Te Kooti tango whenua, above, for a full history especially at 209225 (on ineffec-
tive protective mechanisms).
281
Pateriki Hura v Aotea District Maori Land Board [1940] GLR 173 and the famous dictum of
Hutchison J in Re Mangatu Nos 1, 3 and 4 Blocks [1954] NZLR 624 stating that it has long been recognised
that the policy of the Maori land legislation has been to protect the Maori in his ownership of his land and
that the jurisdiction exercised by the Maori Land Court has been of the nature of that of a guardian.
282
For instance Richard Boast in Spiller, Finn, and Boast, A New Zealand Legal History (Wellington:
Brookers, 1995) 147, and Richard Boast et al, Maori Land Law (Wellington, NZ: Butterworths, 1999)
6164; also the various papers and evidence presented before the Waitangi Tribunal by Fergus Sinclair, see
the discussion in Williams, Te Kooti tango whenua at 2428. These writers challenge the wholly negative
characterization of the Land Acts as simplistic and overlooking Maori agency. Williams response, ibidin
keeping with his admittedly Whig historiography (or retrospective jurisprudence)is that one must look at
the overall result shown by hindsight rather than impressions and conduct of Maori and others at the time.
283
Williams, above, 2223 and 187189.
284
Bryan Gilling, The 1840 Rule in the Maori Land Court (1994) 16 New Zealand Universities L Rev 136.
followed during the same period in North America. In all jurisdictions the underlying
philosophy was identical, being the civilization or assimilation of native culture into
the Anglo-settler. The ownership of land has always had a political resonance in common
law jurisdictions particularly in the period before universal suffrage. Land-ownership
was associated with the franchise and an individuals capacity to assume the full range
of civic responsibility. Individualization of title was thus more than a means of attacking
tribalism and, in New Zealand where it took greater hold than in North America, as a
device for obtaining land for settlement: it was a chauvinistic projection onto aboriginal
culture of the deeply historicized way in which Englishmen conceived their political
rights and duties. And it was an approach that left no room for any legal form of
association with ancestral land other than through individual ownership. In that sense
the statutes affecting Maori and their land passed during the late nineteenth century
had maintained the theme of denial of tribal status set out in Wi Parata. It was also little
wonder that title to Maori freehold land, the individualized tenure, soon became
severely fragmented. Political authority and status in traditional Maori society
remained associated with land. The tribe and occupying hapu (sub-tribe), a dynamic
and complexindeed, often problematicrelationship, had been replaced by the
vastly less sophisticated tenancy in common. Far from spelling the demise of those
structures, the new anglocentric regime became another site for the adaptive continu-
ation of those customary forms. For Maori, Pakeha legalism lived inside the customary
framework, rather than the other way around.
(iii) Australia
The history of white settlement in Australia began with the occupation of New South
Wales as a penal settlement during the late eighteenth century. Although there was an
early phase of mutual discovery and curiosity between white settlers and Aborigine, by
the 1820s that had shifted as the settlers pursued more aggressive policies of physical
displacement and the marginalization of native people into the dry interior. Disease
aided that process.285 By the 1840s organized Aboriginal resistance to settlement in the
eastern states of Australia had peaked. However, as disease and warfare weakened the
Aborigine and pushed the frontier westwards, native policy changed from removal
and marginalization to that of protection. Full-blooded Aborigines were to be
enclosed on stations where missionaries and government officials could supervise
them. Vulgarized Social Darwinism tinged with Victorian religiosity fuelled the belief
that the Aborigine would disappear in the face of the vastly superior civilization that
had reached their shores. Protection was a means of smoothing the dying pillow of
the Aboriginal race, as this article in the Age newspaper in January 1888 made plain:
It may be doubted whether the Australian Aborigine would ever have advanced much beyond
the status of the neo-lithic races in which we found him, and we need not therefore lament his
disappearance. All that can be expected of us is that we shall make his last days as free from misery
as we can.286
285
Jan Roberts, Massacres to Mining (Blackburn, Aust: Dove Communications, 1981) 1315.
286
Quoted in J Chesterman and B Galligan, Citizens without Rights: Aborigines and Australian
Citizenship (Cambridge: Cambridge University Press, 1997) 19.
Mixed-bloods, half-castes as they were known (by a term considered offensive today),
were, however, to be assimilated into the general population. They were regarded as out-
side any special legal or constitutional responsibility.287 The distinction was thus used as a
way of containing governmental responsibility (and, of course, expenditure). Aborigines
were denied the right to vote both by legislation and de facto force of circumstance despite
technically being entitled as subjects of the Crown under male suffrage.288
The several colonies (and later as States) of Australia eventually passed special
statutes enclosing the Aborigine in protective regimes. The colony of Victoria was the
first to enact a comprehensive code (1869), which put the Board for the Protection of
Aborigines on a legal footing.289 This regulation was typical:
Every aboriginal male under 14 years of age, and also unmarried aboriginal females under the age
of 18 years, shall, when so required by the person in charge of any station in connection with or
under the control of the [Board for the Protection of Aborigines], reside, and take their meals,
and sleep in any building set apart for such purposes.290
Similar patterns were followed throughout Australia. Western Australia established its
own Aborigine Protection Board in 1886,291 which it abolished in 1897292 and
replaced with the Aborigines Department. The first comprehensive legislation for
Queensland was passed in 1897,293 influenced by the report of Archibald Meston, a
former member of the Legislative Assembly, that had advocated a policy of total
separation.294 Queensland Aborigines had already been excluded from the franchise in
1885.295 New South Wales had passed some legislation on particular matters affecting
Aborigines (such as their evidence in criminal cases, supply of liquor, and possession of
firearms296) but the first Aboriginal Protection Act was not passed until 1909.297 Again
the thrust of this legislation was very similar to that already in place elsewhere in the
country. South Australia and the Northern Territory did not have protection legislation
until 1911 when a part-time Protector of Aborigines and some sub-protectors (who
were mainly police) were appointed. Tasmania did not enact any protection legislation,
in keeping with the fiction that there were no Aborigines left to protect.
The authoritarian protectionism in the law of the Australian states continued into
the twentieth century. Indeed, rather than easing, thereafter the pattern of supervision
287
Chesterman and Galligan, above, 1619 and see 2130 (Victoria) and 5356 (Queensland).
288
Chesterman and Galligan, above, 1415.
289
An Act to Provide for the Protection and Management of the Aboriginal Natives of Victoria, 1869
(Vic). Regulations were gazetted under this statute in 1871 (Victorian Government Gazette 1871, 338339).
290
Regulation 2, 1880, quoted in Chesterman and Galligan, Citizens Without Rights, 18.
291
Aborigines Protection Act 1886 (WA), section 2.
292
Aborigines Act 1897 (WA), see sections 4, 5, and 7. This was the so-called section 70 compromise,
see P Johnston, The Repeals of Section 70 of the Western Australia Constitution Act 1889: Aborigines
and Governmental Breach of Trust in (1989) 19 Western Australia L Rev 318.
293
Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld).
294
Chesterman and Galligan, Citizens Without Rights, 3738.
295
Elections Act 1885 (Qld), section 6.
296
An Act to Allow the Aboriginal Natives of New South Wales to be received as Competent Witnesses
in Criminal Cases 1839 (NSW); An Act to Prohibit the Aboriginal Natives of New South Wales from
Having Fire Arms or Ammunition in their Possession without the Permission of a Magistrate 1840 (NSW);
Liquor Act 1898 (NSW), section 48 (replacing earlier prohibitions).
297
Chesterman and Galligan, Citizens Without Rights, 65.
and intervention in Aboriginal life became progressively more intrusive, reaching a low
point in the 1930s.298 After the war, however, a new policy of assimilation emerged,
being officially announced as federal government policy in 1951.299 Few reforms
followed this change of policy, indeed in some respects by the 1960s it had left
Aborigines in a worse position especially as the mineral wealth on their lands came to be
better understood. The policy of assimilation with its structured rejection of Aboriginal
culture now began to be invoked ideologically as justification for dispossessing
Aborigines of even reserve lands.300 The political resistance of the Aborigine began in
the late 1960s.
In Australia, then, like Canada and New Zealand, one sees a pattern that can now be
seen as typical of legal and political practice from the mid- to late nineteenth century.
In this period indigenous peoples and their traditional polities were denied standing
and enforceable legal rights where that claim was based upon their aboriginality. The
Crown was the legal ward of these people in a non-justiciable trust. Native people
were regarded on the one hand as subjects of the Crown (and amenable to its laws and
writ). On the other hand, they were unable to use that Crowns courts to protect their
collective rights (including those of property) and seek recognition of their traditional
forms of political organization. It was only after World War II (during which native
people made significant contributions) that this began to change, eventually to
disappear.
There is one important difference between the early histories of engagement
between Crown and aboriginal in New Zealand and Canada on the one hand and
Australia on the other. Whereas the former countries experienced a history of political
relations with their indigenous people signified by treaty-making and quasi-diplomatic
dealings, Australia had no such pattern. Geographical features undoubtedly explain in
part that difference. There was (and remains) the sheer size of the Australian continent
and the littoral concentration of settlement, unable to creep gradually (as in North
America) into a fertile interior. However there was also an important cultural difference,
in that the white settlers and officials were able to perceive structures of political
authority in the Amerindian and Maori societies that they could not observe in
Aboriginal culture. This inability of the British to perceive the political form of tribal
society was not limited to Australia. It also affected British relations with the Nuer of
Africa and the Sakai of the Malay Peninsula in the late nineteenth century, but these
people inhabited territory that was not destined for permanent white settlement.
Even whilst Canadian and New Zealand officials of the nineteenth century denied
the residual sovereign status of the aboriginal polities, de facto relations recognized the
integrity and viability of the tribal structure. Indeed, the legislative policy was a direct
attack on those political forms. The same did not hold for Australia where both law and
practice revealed scant, indeed a virtually non-existent, recognition of the reality of
Aboriginal political organization, so blind were the settlers to it. In North America and
New Zealand, meanwhile, the period when aboriginal peoples political relations with
298
Chesterman and Galligan, Citizens Without Rights, 121 et seq.
299
M Gumbert, Neither Justice Nor Reason: a legal and anthropological analysis of aboriginal land rights
300
(St Lucia, Qld: University of Queensland Press, 1984) 1820. Ibid.
the settler-state most densely followed the de facto nation-to-nation diplomatic pattern
was during the early to mid-nineteenth century, immediately preceding the aggressive
assimilation period. The assimilation policies of the Dawes Act (US), Indian Acts
(Canada), and Native Land Acts (New Zealand) attacked the enduring reality of tribal
organization. In Australia, however, assimilation was not preceded by any such pattern.
There was a murky ambivalence in which colonial officials in Australia felt scant or, at
most, no more than occasional pressure to clarify the legal status of its tribal people.
One does not find a similar indifference to the tribe in early colonial Canada and New
Zealand. To the extent that the Aborigine has been regarded as part of Australian his-
tory, then, it has been in a social rather than political sense.301 There was no better
example of how they were construed than the Report of the Select Committee on
Aborigines (1840). In a famous passage cited earlier, the Committee noted the Crowns
historical pattern of entering into treaties and other engagements with tribal societies.
However the Australian Aborigine was so destitute of even the rudest forms of civil
polity that no such relations were possible with them. The absence in Australia until
recently of a history of political relations between Crown and Aboriginal nation has
had a bearing upon the political culture of Aboriginal claims and will be explored in a
later chapter. The extent to which Aboriginal life was highly regulated will also be
described in a later chapter. Yet even if (Australian) Aboriginal relations with imperial
Britain did not initially follow the pattern of other settlement colonies, by the late nine-
teenth century convergence had occurred. Aboriginal people in the Crowns settlement
colonies (and dominions) were all legally disabled, their traditional polities denied any
standing in law.
(b) United States and the status of the Indian tribes from the late nineteenth
century
The Marshall Court judgments established the residual sovereign status of the
independent Indian tribes. That became the main judicial target during the late nine-
teenth century when the United States, like the Anglo-settler jurisdictions of Canada
and Australasia, also tended towards positivized notions of sovereignty. The Marshall
Court judgments, Worcester in particular, had been very vague on the character of the
residual tribal sovereignty. It has been seen that Crow Dog (1883) had held that federal
criminal jurisdiction did not reach crimes committed amongst Indians on reserves.
That judgment, handed down in the face of a long line of state cases claiming state
jurisdiction in Indian lands, provided a benchmark recognition of residual sovereignty
which soon became qualified.
In 1871, still several years before Crow Dog, Congress announced the end of treaty-
making:
No Indian Nation or tribe, within the territory of the United States shall be acknowledged, or
recognized, as an independent Nation, Tribe, or power, with whom the United States may
301
The historian Henry Reynolds has tried to rehabilitate the Aborigine to this form of Australian
history. Although his work establishes the Aborigine was a matter of political (and legal) concern during the
colonial (and pre-confederation) period, he does not make a case for the existence of a history of political
relations.
contract by treaty; but no obligation of any treaty lawfully made and ratified by any Indian
Nation or Tribe prior to March 3, 1871, shall be hereby invalidated or impaired.302
This measure was largely the outcome of a long-standing dispute between the Senate
and Congress over control of Indian affairs, the lower house believing the treaty ratifi-
cation power gave the upper one too much pre-eminence.303 Whatever its background,
this measure was soon seen as a sign that in practice the United States was becoming
unwilling to follow a sovereign-to-sovereign relation with the Indian tribes. In United
States v Kagama (1886)304 the Supreme Court noted how this ending of the treaty
period had signalled a new departure in Indian affairs.
A year after the ending of the treaty period, a decision at first instance by Judge
Matthew Deady in Portland, Oregon refused recognition of the status of the Alaskan
Indian polities. In United States v Seveloff (1872) Alaskan Indians were given the same
status as white people and denied any status as tribal nations under federal Indian law.
For Judge Deady the reluctance to perpetuate a distinct and separate legal status for
aboriginal peoples flowed from his strong liberal beliefs. Judge Deady was in his time a
stern proponent of full legal equality for all individuals, regardless of race,305 a stance
contributing to his latter day status as a liberal hero. Whilst his championing of the
principle of equality might have been worthy in the context of immigrant labour, in a
different line of cases during the late nineteenth century he refused to recognize and
support Indian sovereignty. He endorsed the state court judgment of his friend George
Williams,306 by then the United States Attorney-General, that the Nonintercourse
Acts did not reach that far west.
There was a further important sign in this period of the less permissive attitude
towards tribal sovereignty that came in the wake of the discontinuance of treaty
relations. This was the hardening of federal practice and case-law on what until then
had been a rather fluid and not especially consequential distinction between recognized
and unrecognized tribes. Recognized groups were taken to hold a remnant
sovereignty (and attract the governments responsibility) whereas the unrecognized
did not.
A series of cases in the period 187686 dealt with this question of recognition,
establishing it doctrinally as the jurisdictional hook for Indian relations with the
federal government.307 This process culminated in the famous case Montoya v United
States (1901) in which the Supreme Court attempted to establish some criteria, however
primitive, for what constituted a federally recognized tribe, or how an unrecognized
tribe might establish or attain federal recognition.308 This case set the federal common
302
Act of Congress, 3 March 1871, 2079 Revised Statutes, 1871.
303
F Hoxie, The Final Promise: The Campaign to Assimilate the Indians, 18801920 (Lincol, Neb:
304
University of Nebraska Press, 1984). 118 US 375 (1886).
305
Ralph James Mooney, Matthew Deady and the Federal Judicial Response to Racism in the Early
West (1984) 63 Oregon L Rev 561. Less sympathetically see Deborah Niedermeyer, The True Interests of
a White Population: The Alaska Country Decisions of Judge Matthew P Deady (1988) 21 International
306
Law and Politics 195. United States v Tom 1 Or 26 (1853).
307
US v 43 Gallons of Whiskey 93 US 188 (1876), esp 195; United States v Joseph 94 US 614 (1876), 617;
Elk v Wilkins 112 US 94 (1884) at 9899; Eastern Band of Cherokees v US 117 US 288 (1886), 309310.
308
See generally William W Quinn Jr, Federal Acknowledgment of American Indian Tribes: The
Historical Development of a Legal Concept (1990) 34 American J of Legal History 331 (esp 352353).
law test for the tribe describing it as we understand [it, as] a body of Indians of the same
or a similar race, united in a community under one leadership or government, inhabit-
ing a particular though sometimes ill-defined territory. . .309 American law thus
claimed the right to determine if a tribe existed or not. The tribes identity had become
a legal as well as ethnological matter. As Indian dependence upon the government
grew, important consequences were to flow from recognition or (more parlous)
otherwise. The history that sprang from thatthe legal history of tribal and individual
statuswill be considered more fully in the next chapter.
The most dramatic inroad into the tribal sovereignty recognized in the Marshall
trilogy came, however, in the wake of Crow Dog (1883). This case denied United States
jurisdiction over crimes committed amongst Indians on reserves. The Supreme Courts
controversial judgment resulted in the passage of the federal Major Crimes Act (1884).
This Act extended federal criminal jurisdiction onto reserves over selected intra-Indian
crimes. In Kagama (1886) the Supreme Court upheld the constitutionality of the 1884
statute. In doing so it proceeded also to articulate the doctrine of plenary
Congressional authority, leaving Indian status and other rights subject to the super-
vening will of Congress. Cohen suggested (1940) that the legislative history of the
statute indicated Congress did not intend to diminish or impair tribal authority over
its own membership.310 However Whaley (1888) showed how lower federal courts were
apt to read the Act as curtailing and pre-empting tribal authority. In this case four
Indians had killed a poison-dispensing medicine man on the instruction of the tribal
council. Their conviction of manslaughter was upheld.311
One might contrast that tendency with Talton v Mayes (1896) in which the appellant,
Talton, a Cherokee, was indicted under tribal law before a jury of only five persons. He
challenged unsuccessfully the Cherokee processes under the Fifth Amendment.
During the late nineteenth century the Cherokee had consciously adopted institutions
of governance modelled on the American, but, as the respondent, Chief Mayes, had
told Congress the year before, distinctive still as Cherokee institutions.312 That imitative
element might have influenced the court, which stressed that the Fifth Amendment
was a limitation only upon the powers of the general government. The case turned on
whether the powers of local government exercised by the Cherokee nation are Federal
powers created by and springing from the Constitution of the United States, and hence
controlled by the Fifth Amendment to that Constitution, or whether they are local
powers not created by that Constitution, although subject to its general provisions and
the paramount authority of Congress.313 The Cherokee Cases showed that the former
question had long since been answered in the negative. Thus whilst reaffirming tribal
subordination to Congress, it also shielded tribal governance from Constitutional review.
Though qualified by Congressional paramountcy, tribal sovereignty remained the
legal cornerstone. That qualification provided the juridical platform for legislative
309
Montoya v United States 180 US 261 (1901), 266.
310
F Cohen, Indian Rights and the Federal Courts (1940) 24 Minnesota L Rev 145.
311
United States v Whaley 37 F 145 (CCSD Cal, 1888).
312
Cherokee delegates defend their Land and Insititutions, 1895, address by Principal Chief SH Mayes
to Congress, 1895, in A Hurtado and P Iverson (eds), Major Problems in American Indian History (2nd edn,
313
Boston: Houghton Mifflin Co, 2001) 351. Talton v Mayes 163 US 376 (1896).
inroads into tribal jurisdiction, as the Major Crimes Act itself showed. The courts
aggravated that over the following years with their own judicial whittling of the scope
of tribal criminal jurisdiction upon their own territory. Nonetheless the Supreme
Court continued to recognize the primacy of tribal law on civil and domestic matters.
Although the criminal jurisdiction of the tribe had been judicially diminished, the
eminent writer on Indian affairs, Felix Cohen, was able to identify several important
civil areas in which Indian self-government remained paramount. These included
determination of tribal membership, inheritance, tribal taxation, tribal property laws,
and domestic relations.314 Nonetheless post-Crow Dog the significant judicial under-
mining of Worcester was plain.
The Major Crimes Act and the Kagama decision occurred at a time when Indian
wars were waging on the western frontier and Congress was debating the Indian policy
that was to lead to the Dawes Act (1887). The formation of federal policy was also
influenced at that time by reform groups like the Indian Rights Association and the
Lake Mohonk Friends of the Indian Conference who believed that the native
Americans should be exposed to more civilizing influences and practices. Well-meaning
do-gooders were endorsing the programme of assimilation being applied by the federal
government.
The General Allotment [or Dawes] Act of 1887 provided for the enforced allotment
of Indian lands in order to destroy their tribalism and to replace it with the individualism
of civilized society.315 It rested on the doctrine of plenary Congressional authority
given by the Kagama316 case. This congruence of armed conflict, judicial decision
limiting tribal status and the introduction of a policy of individualization of tribal
tenure was remarkably similar to and virtually contemporaneous with events in New
Zealand.
The Dawes Act established the general policy of allotment. This policy had been put
into a sort of practice by the Commissioner of Indian Affairs George Manypenny in
numerous treaties negotiated during the 1850s providing for individual allotment.317
The Dawes Act, however, gave that piecemeal approach a more thoroughgoing
character. The Act was justified on the basis of the inherent corruptibility and degeneracy
of tribal governance, an accusation that the tribes countered strongly but unsuccessfully.
For example, the Cherokee protested that they had adopted western constitutional
forms and they acknowledged also that there may have been some problems in their
application of those forms. But such malpractice, they said, was a western rather than
Indian affliction:
Walking in your footsteps, it could hardly be expected that, in following the good you practice,
some of your evils may not have also their mark. We pursue some short cuts in office down there
sometimes that would hardly receive the approbation of a legislative reformer; but that we are one
half as corrupt as the Dawes commission represent us we emphatically deny, neither can we admit
that we are to any degree as corrupt as the newspapers assert of your average legislatures . . . 318
314
F Cohen, Indian Rights and the Federal Courts (1940) 24 Minnesota L Rev 145.
315
WT Hagan, Private Property: The Indians Door to Civilisation (1956) 3 Ethnohistory 126.
316 317
Harring, Crow Dogs Case, above, 143. Prucha, American Indian Treaties, 241242.
318
Cherokee Delegates Defend their land, 1895, above.
As this passage showed, Indian leaders were not slow to detect the application of
double standards to their manner of self-governance.
The Dawes Act contemplated a per capita grant of reserve land to individuals (one
hundred and sixty acres to each family head, eighty acres to each single person over
eighteen years old and forty acres to those under that age). Allottees were to acquire
United States citizenship, which also was to be conferred upon any other Indian who
had abandoned their tribes for the civilized life. Once a patent was granted to an
allottee it was to be inalienable for twenty-five years, after the expiry of which the allot-
tee became liable to state law and jurisdiction. The Act also provided for surplus land
not needed for fixed-acreage allotments to be ceded by the tribe to the federal govern-
ment and thence to become available for non-Indian settlement. In that way Indian
reservations became opened up for non-Indian settlement.
As the allotment process was left to the agreement of particular tribes with the federal
authorities it was not implemented on all reservations. Even on those reservations where
it was adopted the degree of penetration varied considerably. The surplus land policy
resulted in checkerboard land-ownership, sprinkling reservation and Indian allotment
tenure with white homesteaders. Like the individualization policy in New Zealand, it
was responsible for a considerable loss of native land. During the period 1887 to 1934
Indian landholding was reduced two-thirds, from 138 million acres to 48 million
acres.319 Individuals regarded as sympathetic to the Indian people supported the Act at
the time of passage. But its disastrous consequences later became plain. Theodore
Roosevelt described the Act as a mighty pulverising engine to break up the tribal mass.
It acts directly upon the family and the individual.320 The scrambling of ownership and
titles not only compromised tenure and resource management within the reservation,
but the governmental capacity of the tribes. When the reservations were opened, true
traditional governments were essentially doomed in most tribes, and the authority of
tribal rule was undermined.321 The promise of a measured separatism inherent in the
discontinued treaty-making policy and Marshall trilogy was shattered by allotment.
The Dawes Act (1887) had opened reservations for non-Indians. As they moved in
so too did state law.322 In McBratney v United States (1882)323 the Supreme Court
upheld state court jurisdiction over an alleged murder on the reservation of a non-
Indian by a non-Indian despite the Indian Country Crimes Act requiring a federal
court prosecution. One might have thought that statute and the supervening status of
the federal government would have steered the court away from extending state juris-
diction into Indian territory. That, after all, had been the long-standing and
entrenched philosophy of the Nonintercourse Acts. However, McBratney evidenced
one essential policy choice that the Supreme Court made and continues to honor:
absent a highly explicit federal statute to the contrary, state laws prevail over tribal
and federal laws in regard to an activity that occurs in Indian country and that is not
directly involved with legitimate tribal concerns.324 The notion of the reservation
319
Clinton, Newton, and Price, American Indian Law, 148152. Also Theresa Wilson, Nations within
a Nation: The Evolution of Tribal Immunity (19992000) 24 Am Indian L Rev 99, 107.
320 321
Quoted in Wilkinson, American Indians, Time and the Law, 19. Ibid 21.
322 323
Wilkinson, American Indians, Time and the Law, 88. 104 US 621 (1882).
324
Wilkinson, American Indians, Time and the Law, 89.
as a jurisdictional and territorial enclave governed solely by the special relationship

between the federal government and tribe was compromised.
In this period in the late nineteenth century the notion of Indian country also received
closer attention. The term Indian country described a geographical area in which tribal
autonomy was recognized and state jurisdiction limited.325 Congress gave the earliest
definitions of Indian country. The Royal Proclamation 1763 had famously set a western
line running north to south and beyond which white settlement was prohibited. The
Nonintercourse Acts moved that line ever further westward. The final one of 1834 defined
Indian country as that part of the United States west of the Mississippi, and not within the
states of Missouri and Louisiana, or the territory of Arkansas, and, also, that part of the
United States east of the Mississippi River, and not within any state to which the Indian
title has not been extinguished.326 That boundary setting became meaningless as the
United States expanded after the Mexican-American war and the forced removal of the
eastern tribes. In 1874 Congress repealed that definition without affecting the notion of
exclusive federal jurisdiction over reservation land. Problems arose, however, with regard
to Indian land that had not been set apart as a reservation and over which a state had
jurisdiction.327 This left it to the courts to determine what constituted Indian country,
a task achieved authoritatively by three Supreme Court judgments in 1913. In Donnelly
the court held that a reservation held in trust by the federal government was Indian
country.328 Likewise allotment lands held in trust by the federal government were held in
Pelican to be Indian country.329 However the court took what was arguably a broader
approach in Sandoval 330 where it considered Indian land owned in fee simple by the tribe.
The court rested the determination of Indian country not on the land title regime but the
existence of a group whom the federal government had regarded and treated . . . as
requiring special consideration and protection, like other Indian communities.331 In
1937 the Supreme Court reiterated that dependent Indian community test for Indian
country332 which was further confirmed by Congressional legislation of 1948.333
At the end of the nineteenth century there were other encroachments upon the
distinct sovereign status of the Indian tribes alongside those noted already. Before 1891
persons with claims against Indian tribes had to rely upon wrongs and depredations
clauses in treaties. Under the treaties procedures claimants would generally file proofs
with the Commissioner of Indian Affairs who would then compensate the claimants
from funds due the tribe. The tribe could not be sued directly. That procedure was mod-
ified in 1891 when Congress passed the Indian Depredations Act by which the Court of
Claims handled the victims claims and claimants had to prove the tribe was amity with
the United States and not entitled to belligerent status under international law.
One consequence of the distinct sovereign status of the Indian nations was their status
as citizens of their individual tribes, and not the United States. In Elk v Wilkins (1884)
325
Worcester v Georgia 31 US 515 (1832), 561.
326
The Indian Trade and Intercourse Act, ch 161, 4 Stat 729 (1834).
327
Joseph Matal, A Revisionist History of Indian Country (1997) 14 Alaska Law Review 283, 292.
328 329
Donnelly v United States 228 US 243 (1913). United States v Pelican 232 US 442 (1913).
330
See John Bielski, Judicial Denial of Sovereignty for Alaskan Natives: An end to the era of self-
331
determination (2000) 73 Temple L Rev 1279, 1298. United States v Sandoval 231 US 28 (1913), 46.
332 333
United States v McGowan 302 US 535 (1937). Codified as 18 USC 1151.
the Supreme Court stated that the members of those tribes owed immediate allegiance
to their several tribes, and were not part of the people of the United States.334 However,
if that position cut against the grain of the policies of assimilation and federal authority
emerging in the 1880s, then Winton v Amos (1921) was a correction. In that case the
Supreme Court reversed itself to hold that legally Indians could be made citizens of
the United States.335 As a result American citizenship was forced on all Indians in
1924.336 The Elk case had also held that Congressional legislation only applied to Indian
tribes where there was a clearly expressed intention to include them. In 1931 that
approach was superseded by a new one that required a definitely expressed intention to
exclude Indians from such legislation.337
The seal on the Congressional and judicial contraction of tribal sovereignty came in
Lone Wolf v Hitchcock (1903). This case continued the theme of unfettered federal author-
ity set in Kagama. In this case Lone Wolf sought an injunction against the application of a
federal statute that gave effect to an allotment treaty agreed by his tribe. He argued that
tribal consent had been improperly obtained as a result of the fraud and concealment of
the government officials. The Supreme Court rejected his argument, depicting the exercise
of the Congressional legislative power as an unreviewable political question:338
. . . [A]s Congress possessed full power in the matter, the judiciary cannot question or inquire
into the motives which prompted the enactment of this legislation. If injury was occasioned,
which we do not wish to be understood as implying, by the use made of Congress of its power,
relief must be sought by appeal to that body for redress and not to the courts.
This plenary power was taken to mean an absolute power, unlimited in the sense that
Congress was free to pursue whatever aims it wished without regard to other provisions
of the Constitution. This meant that the tribes aboriginal occupancy of ancestral land was
not subject to the Fifth Amendment. The Supreme Court endorsed the Congressional
plenary power soon after in United States v Sandoval (1913).339 Effectively the
American Indian had been reduced to a similar legal position as Maori, cast into a
constitutional No Mans Land where in their dealings with the government they were
neither fully sovereign nor held the full rights of individual citizens. Thomas Jeffersons
declaration a century before that America did not subscribe to British notions of
absolute sovereignty no longer held. It would not be until the 1970s that the Supreme
Court retreated and began drawing a framework of principled restraints on the exercise
of federal power in Indian law.340
Within what was at best a bare legal framework, administrative practices were also
established for regulating and transforming the minutiae of everyday Native American life.
The Indian police originated from the Indian scouts that had helped the American army
and became on-reservation enforcement agencies of the Bureau of Indian Affairs. The
police were often implicated in tribal factionalism, usually on the side of the
progressives against the tribal fundamentalists.341 In 1883 courts of Indian offences
were given formal approval ostensibly under the general provisions of the law, giving
334 335
112 US 94, 99 (1884). 255 US 373, 391 (1921).
336
Act of 2 June 1924, ch 233, 43 State 253 (repealed 1952).
337 338
Choteau v Burnet 283 US 691, 696 (1931). 187 US 553 (1903), 568.
339 340
231 US 28 (1913). See Wilkinson, American Indians, Time and the Law, 7886.
341
See Harring, Crow Dogs Case, 182185.
the Department of Interior supervision of the Indians.342 These on-reservation courts

were convened to enforce BIA-set codes of behaviour imposing Christian rules. A code
of regulations was issued for the courts in 1892.343 The focus of the code was mainly the
standardization of procedure. However it defined vagrancy to include Indian idleness
and loafing344 and established offences for such matters as polygamy, adultery,
cohabitation, and fornication. Another Indian practice banned was the destruction of
property after death, indefensible even if the person was a mourner and justified by the
customs or rites of the tribe. Other regulations of the period also purported to regulate
the length of Indian males hair and the Christianization of names.345
These rules were administered through Indian agents, on-reservation representatives
of the BIA. From 1870 to 1890 Indian agents had been appointed through church
groups. It was difficult to find honest non-exploitative Indian agents so the idea of
letting the church select agents was appealing, but inter-denominational disputes and
anti-Catholicism compromised it. In practice Indian agents were highly influential
and the history of many Native American tribes from the late nineteenth and well into
the twentieth century became agent-centred. Some agents did not bother to establish
courts and ran the reservations pharaoh-like themselves.
Education was also regarded as central to assimilation. In 1879 federal boarding
schools were set up modelled on the (notorious) Carlisle School of Captain Richard
Pratt. Congress made education compulsory in 1892346 but an 1894 regulation prohib-
ited sending children to schools outside the state without parental consent. However
Indian agents often simply ignored that rule such that child-snatching was a common
practice until the 1930s.347 A Mesquite Indian agent described the tactics used:
Everything in the way of persuasion and argument having failed, it became necessary to visit the
camps unexpectedly with a detachment of police, and seize such children as were
proper. . . Some hurried their children off to the mountain or hid them away in camp, and the
police had to chase or capture them like so many wild rabbits. The men were sullen and muttering,
the women loud in their lamentations, and the children out of their wits with fright. There were
the older girls, who fought like brought-to-bay bobcats . . .348
By the early 1900s day schools were replacing federal boarding schools but the latter
had a lasting primarily destructive impact upon Native American life.349
***
The Empire of Uniformity had as much vigour in America as in Australasia and
Canada. In all jurisdictions the legal management of native peoples affairs was based
upon a principle of detribalization, and assimilation and the settler-states assertion of
342
Ibid 186. Note the Board of Indian Commissioners view of the courts as disciplinary rather than
formal courts, ibid 188. The Board of Commissioners was a semi-official body of humanitarian and
philanthropical men established by Congress in 1869: Prucha, Indian Policy in the United States: historical
essays (Lincoln: University of Nebraska Press, 1981) 200.
343 344
Regulations for Indian Courts, 27 August 1892, text in ibid 186189. Ibid 190.
345
See Linda Lacey, The White Mans Law and the American Indian family in the Assimilation Era
346
(1986) 40 Arkansas L Rev 327. Act of 13 July 1892, cap 164, 1, 27 Stat 120, 143.
347
Lacey, White Mans Law, 359.
348
From W Hagan, Indian Police and Judges; Experiments in Acculturation and Control (New Haven: Yale
349
University Press, 1966) 110. Lacey, White Mans Law, 360361.
extensive regulatory power. The laws were instrumental in design, but accomplishing
their goal was easier said and pronounced in statute than done in the less tractable
bustle of the everyday. The policy of assimilation will be revisited more thoroughly in
the later chapters on status, which will also consider the rehabilitation of the Indian
tribe in American law and practice.
(c) The standard of civilization in international law

So far attention has focused on the juridical response of imperial Britain and its colonies
and the United States to the tribal polities whose presence affected the progress of white
settlement. In these common law jurisdictions aboriginal relations became particularly
pressing during the second half of the nineteenth century. Related to that is the question
of the contemporaneous status of the native or, perhaps more accurately, the tribal
polities in those regions over which England did not claim territorial sovereignty but in
respect of whom it maintained some dealings usually through treaty. The juridical basis
of those relations, especially as they occurred from the mid-nineteenth century on,
turned on international and common law principles, both of which, in turn, were
affected by imperial statutes. Specifically, the questions that arose related to the charac-
ter of the jurisdiction which the Crown could exercise in territory inhabited by such
polities but in respect of which it did not claim the territorial sovereignty. The various
contexts in which such questions arose will become plain, but before then it is necessary
to clarify the consequence which the development of a standard of civilization in inter-
national law had upon the juridical status of tribal societies.
It was seen earlier that Vattels conception of independent and equal state
sovereignty harnessed the theory to the Crowns formal conduct of its relations with
non-European polities, particularly the tribal, but did so in a manner which frequently
exposed the almost farcical supposition of equality. The imbalance was accentuated
from the early nineteenth century by the rapid emergence of the European states
system,350 which saw European nations establishing an elaborate network of regular
treaty relations on matters such as extradition351 and postal services.352 Such relations
clearly lay beyond the reach of the less sophisticated states, so it was hardly surprising
such activity did not include them. Moreover, the European states increasingly
required some guarantee that a state could protect their travelling and sojourning
nationals with laws regularly and impartially enforced. Schwarzenberger observed:
[T]he test whether a state was civilised and, thus, entitled to full recognition as an international
personality was, as a rule, merely whether its government was sufficiently stable to undertake
binding commitments under international law, and whether it was able, and willing to protect
adequately the life, liberty, and property of foreigners.353
350
More fully see A Watson, European International Society and its Expansion, and H Bull, The
Emergence of a Universal International Society in Bull and Watson (eds), The Expansion of International
Society (Oxford: Clarendon Society, 1984) 13 and 117.
351
Such treaties were limited to the civilized states: George Cornwall Lewis, On Foreign Jurisdiction
(1859) 35 et seq; FW Gibbs, Extradition Treaties (London: W Ridgway, 1868).
352
These treaties are listed chronologically in the SCI, II, pt 2, 123 et seq. They became frequent during
the second quarter of the nineteenth century, the uncivilized states being largely excluded from this treaty-
making activity.
353
The Standard of Civilisation in International Law [1955] Current Legal Problems 212, 220.
As a result the European nations began to distinguish by means of a standard of

civilization those countries able to enter into the full range of relations from those unable
to do so. This standard, with its strong connotations of the old distinction between
Christian and infidel nations,354 became incorporated into European state practice dur-
ing the second half of the nineteenth century and was recognized by the major works on
international law written and available in English during this period. Although it is pos-
sible to see the germination of the standard of civilization in Anglo-American treatises of
the early nineteenth century,355 its full presence dates from the second half of the nine-
teenth century. International practice, exemplified by the admission of Turkey,356
Japan,357 and China358 to full international ranks,359 and its emphatic presence in the
texts of the period combined to give it an increasing juridical standard.
The development of a standard of civilization in international law by itself was not an
abnegation of the sovereignty of the uncivilized states so much as a recognition drawn from
the actual state of international relations that certain forms of relations were not possible
with these states. The standard was never founded upon a disqualification of all juridical
standing for the uncivilized polities. It was generally recognized by the European nations
that some treaty relations were possible and that certain rights could accrue from such
engagements with them. Such rights generally related to the conferral of jurisdictional
rights or an imperium within the non-European territory. The Conference of Berlin
(1885) represented a late nineteenth-century tidemark when various European nations
used their treaties with indigenous African polities as a basis for excluding other European
nations from their own spheres.360 Some English writers nonetheless took an absolute view
354
Many of the publicists indicated the standard had its origins in the requirements and practice of Christian
civilization. For example: J Mackintosh, A Discourse on the Study of the Law of Nature and Nations (London: T
Cadell Jr and W Davies, 1799) 5 and 62; H Wheaton, Elements of International Law (London: B Fellowes,
1836) 5051; J Kent, Commentaries on International Law (revised English edition by JT Abdy, London: Stevens
& Sons, 1866); TD Woolsey, Introduction to the Study of International Law (4th US edn, London: Sampson
Low, Marston, Low and Searle, 1875) 35; J Lorimer, The Institutes of the Laws of Nations. A Treatise of the Jural
Relations of Separate Political Communities (2 vols, Edinburgh: William Blackwood & Sons, 1883) I, 113126;
TE Holland, Studies in International Law (Oxford: Clarendon Press, 1898) 113114; cf
L Oppenheim, International LawA Treatise (2 vols, New York: Longmans, Green & Co, 1905) 3132.
355
Mackintosh, Discourse (1799), above, 6162; GF Martens, The Law of Nations (trsl of 4th edn by
W Cobbett, London: W Cobbett, 1829) 5 and translators note; Wheaton, Elements (1836), above, 5054.
356
Turkeys recognition as a civilized state is traditionally dated from the Treaty of Paris (1856). See Naff,
The Ottoman Empire and the European States System in Bull and Watson, Expansion of International
Society, above, 143, and G Gong, The Standard of Civilisation in International Society (Oxford: Clarendon
Press, 1984) 106119.
357
See Holland, Studies in International Law (1898), above, 113114 (Japans status doubtful), and Lectures
on International Law (TA and WA Walker (eds), London: Sweet & Maxwell, 1933) 39 ( Japan admitted to the
charmed circle), and generally Gong, The Standard of Civilisation, above, 164200 and Suganam, Japans
Entry into International Society in Bull and Watson (eds), International Society and its Expansion, above, 185.
358
Holland, Lectures (1933), above, 39 (Chinas status still doubtful), and generally Gong, Standard of
Civilisation, above, 130163 and Chinas Entry into International Society in Bull and Watson (eds),
Expansion of International Society, 171.
359
For the status of other states such as Persia, Siam, Abyssinia, and Liberia see, for example, Oppenheim,
International Law (1905), above, 3234, and Holland, Lectures (1933) 3839. Generally Gong, The
Standard of Civilisation and Bull and Watson (eds), The Expansion of International Society.
360
The Final Act of the Berlin Conference (articles 34 and 35) created a notification system amongst the
European powers in relation to their possessions in Africa, those invariably being claimed through treaty
with the native polities.
of international personality and the standard of civilization when they argued that Africa
was to be considered terra nullius like the New World.361 That misrepresentation of the
New World position was one that the European states did not apply in Africa, as the heavy
treaty-making activity upon that continent during the nineteenth century plainly
indicated.362 Although the circumstances behind these treaties may have been one of
imbalance, the European nations nonetheless took the position that the native polities
were able to grant them a jurisdictional presence (imperium) in their territory.
Most publicists of the period acknowledged if but inferentially that the standard of
civilization had imported a two-tier form of sovereignty into international relations.
They did that either negatively by limiting their discussion to the European Law of
Nations363 or, more revealingly, by acknowledging some status in uncivilized societies
whilst excluding them from the inner club of civilized states. This latter group often
expressed that lower sovereignty in terms of semi- or demi-sovereignty and frequently
invoked a feudal analogy of suzerain and vassal state to describe the relation between
European nations and those uncivilized societies who had placed themselves under the
protection of the former.364 Those writers recognized that whatever the other limitations,
an uncivilized nations juridical capacityits sovereigntyextended at least to the abil-
ity to provide a European power with some jurisdictional presence in their territory.365
A revised edition of Manning (1875), for example, wrote of the acquisition of
territorial sovereignty, the fulmost imperium, over uncivilized territory:366
The only two modes of acquiring territory in modern times are Occupation and Cession by
treaty, whether following upon a war or not. It would seem at the present day that a right by
Occupation is strictly limited to the case of land absolutely uninhabited, and that in the case of
361
Westlake, Chapters on the Principles of International Law (Cambridge: the University Press, 1894)
144155; TA Walker, A Manual of Public International Law (Cambridge: the University Press, 1895) 2731;
TJ Lawrence, The Principles of International Law (London: Macmillan, 1895) 143156; Oppenheim,
International Law (1905) 278279; J Westlake, International Law (2nd edn, 2 vols, Cambridge: the
362
The SCI lists the following number of treaties in Africa: Belgium 3, France 5, Germany 75, Britain
85, Italy 327, and the Netherlands 339. See generally the classic work of MF Lindley, The Acquisition and
Government of Backward Territory in International Law (New York: Longmans, Green & Co, 1926) 140148
and Bull, European States and African Political Communities in Bull and Watson (eds), Expansion of
International Society, 99 esp 111112.
363
Most writers, including those not dealing expressly with the status of uncivilized societies, defined
international law as the rules governing the conduct of European states at large (as opposed to inter se). For
example: Mackintosh, Discourses (1799) 6163; Martens, The Law of Nations (1829, trsl Cobbett) 35;
Wheaton, Elements (1836) 54; HW Halleck, International Law; or Rules Regulating the Intercourse of States
in Peace and War (San Francisco: HH Bancroft & Co, 1861) 4351; Abdy (ed), Kents Commentaries (1866)
6 and 11; S Amos, Lectures on International Law (London: Steven and Sons, 1897) 13; T Twiss, The Law of
Nations considered as independent political communities (2nd edn, Oxford: Clarendon Press, 1884) 145149;
R Phillimore, Commentaries on International Laws (3rd edn, 4 vols, London: Butterworths, 187989) 349;
H Maine, International Law (2nd edn, London: John Murray, 1894) 3235.
364
L Levi, International Law with Materials for a Code of International Law (London: Kegan Paul, French &
Co, 1887) 8384; Twiss, The Law of Nations (1884), above, 27; F Wharton, A Digest of the International Law of
the United States (3 vols, 2nd edn, Washington: Government Printing Office, 1887) II, 533; Maine, International
Law (1894) 5859; E Creasy, First Platform of International Law (London: John Van Voorst, 1876) 9498.
365
See Lindleys review of the publicists in Acquisition and Government of Backward Territory, above, 1223.
366
WO Manning Jr, Commentaries on the Law of Nations (revised edn, by S Amos, London: H Sweet,
1875) bk 3, ch 3.
colonising an already inhabited country, annexation of territory can only take place by interposing
the fiction of a spontaneous cession on the part of persons representing the government of the
native inhabitants.
Similarly Phillimore distinguished the general principles of international law binding
upon all nations from those of the positive European Code which bound only
European (civilized) nations. Whilst uncivilized or infidel nations were not subject to
the latter code they were nonetheless valid subjects of international law to whom the
former code applied:367
The great point, however, to be established is, that the principles of international justice do gov-
ern, or ought to govern, the dealings of the Christian with the Infidel Community. They are bind-
ing, for instance, upon Great Britain, in her intercourse with the native powers of India; upon
France, with those of Africa; upon Russia, in her relations with Persia or America; upon the
United States of North America, in their intercourse with the Native Indians.
Such writers show there was a continued recognition of the juridical capacity of
non-European polities notwithstanding the development during the latter part of the
nineteenth century of a standard of civilization. The exception to that recognition
occurred in a small group of English writers368 who viewed international law as entirely
limited to civilized nations, relations elsewhere not being the subject of law so much
as mere international policy. Lindley (1926) showed the unrepresentative character of
this group with its absolutist conception of international personality and capacity and
its view of territory inhabited by those outside the charmed circle as terra nullius.369
Phillimore rejected this detestable and erroneous doctrine370 which fundamentally
misapprehended long-standing European treaty-making practice. Certainly British
practice had always been predicated upon the supposition that treaties with tribal
polities were not mere puffs but substantive sources of rights.
(d) British jurisdictional imperialism during the nineteenth century
From the time of its earliest relations with non-Christian potentates the Crown had
recognized the capacity of those rulers to grant the Crown an imperium or jurisdiction
in that territory. The development of a standard of civilization did not affect the
recognition of that capacity. By the mid-nineteenth century it was established that
there were two types of imperium which the Crown might acquire in such territory,
these being the territorial sovereignty or an extra-territorial jurisdiction.
(i) The acquisition of territorial sovereignty over tribal peoples territory
During the second half of the nineteenth and into the early twentieth century the
Crown entered into numerous treaties of cession with uncivilized societies. On 6
August 1861 the eleko (king) of Lagos ceded the island and port of the same name to
367
Commentaries (1879) 2223.
368
Further examples include JS Mill, A Few Words on Non-Intervention in Dissertations and Discussions
(4 vols, London: John W Parker and Son, 185975) III, 152; Westlake, Chapters, above, 143184;
Lawrence, Principles of International Law (1895) 6869 (American Indians and East Indian principalities),
145156 (barbarous communities); Oppenheim, International Law (1905) 3334 (Persia, Siam, China etc),
268269 and 276281 (treaties with tribes).
369
Acquisition and Government of Backward Territory, above, 1823 and 47.
370
Commentaries (1879) 349.
the Crown.371 The treaty provided that I, Docemo, do, with the consent and advice of
my Council, give, transfer ... the Port of Lagos ... as well the profits and revenue as the
direct, full, and absolute dominion and sovereignty of the said port, island and prem-
ises, with all the royalties thereof, freely, fully, entirely, and absolutely. In ceding the
sovereignty whilst also preserving the Kings authority over his own people and reserv-
ing their property rights this cession was similar to the Treaty of Waitangi in New
Zealand (1840). Similarly in 1874 King Cakombau ceded the islands of Fiji to the
Crown.372 In 1892, to take a random year from the late nineteenth century, the Crown
entered into seven treaties of cession with various chiefs in Central Africa.373 Clearly
the Crown considered these uncivilized polities to have the capacity to cede territorial
sovereignty and used such treaties as the basis of its title.374
English courts were developing the common law principles for the recognition of
foreign states during the early nineteenth century in relation to claims brought before
them by and against foreign governments and the Crown on matters arising from its
conduct of Britains foreign relations. The most fundamental rule established in this
period was that the recognition of the sovereign status of a foreign power was essentially
a political act of the Crown to which the courts would give appropriate effect.375 A dis-
tinction merged between de facto and de jure recognition, largely in response to the
claims to statehood of the newly independent former European colonies in Meso- and
South America. Generally speaking de facto recognition developed as a form of tenta-
tive recognition given those states whose political control lacked an established tradi-
tion and pattern of stability.376 A state recognized de facto could nonetheless allow a
British imperium in its terrritory, as Cakombau who had been recognized only as the de
facto sovereign of Fiji.377
Many cases of the late nineteenth and early twentieth century proceeded on the basis
that treaties of cession between the Crown and the uncivilized polities of the East
Indies and Africapolities outside the charmed circlewere arrangements concluded
between two sovereign powers. The act of state cases supposed the sovereign status of
the East Indian Mughal princes.378 The African cases also supposed the sovereign status
of the tribal chiefs in making a cession of their territory. In Re Southern Rhodesia (1919)
371
Treaty with the King of Lagos, 6 August 1861: 123 CTS 234, 256.
372
Instrument of Cession, 10 October 1874, text in CO 881/4:44 at 910; Fiji Government Gazette,
October 1874. Proclamation of British sovereignty by Sir Hercules Robinson dated the same day.
373
SCI 170171.
374
Maine, International Law (1894), above, 7175; Lindley, Acquisition and Government of Backward
Territory 2444; E Hertslet, Memorandum on formalities necessary for effective annexation, 18 October
1884 in FO 84/1813:246265, points 4 and 6.
375
The PelicanBurke (1809) Edw (App) iv (PC); In re the Government of Peru (1823) BILC 12 (Ch);
Jones v Garcia de Rio (1823) T & R 297 (Ch), 299. See also Phillimore to Foreign Office, opinion 31 March
1865 in CO 885/10: 323A.
376
HA Smith (ed), Great Britain and the Law of Nations (2 vols, London: PS King & Son, 1932).
377
Confidential Instructions to Layard, August 1873 in CO 881/13:37.
378
For instance Nabob of Arcot v East India Co (1791) 1 Ves Jun 370, 2 Ves Jun 56; Doss and the Estate of
the Ex-King of Delhi (1867) 11 Moo Ind App 277 (PC); Mayor of the City of Lyons v East India Co (18367)
1 Moo PC 175 (sovereignty obtained gradually with Mughal permission); Advocate-General of Bengal v
Ranee Surnomoye Dossee (1863) 9 Moo Ind App 387 (PC); Secretary of State for India in Council v Bai Rajbai
(1915) LR 42 Ind App 229 (PC); Vajesingji Joravasingji v Secrtary of State for India in Council (1924) Lr 51
Ind App 357 (PC).
Lord Sumner indicated the Crown had recognized in 1888 the sovereignty of King
Lobengula over the Mashona and Matabele tribes:379
The British Government stated to the Portuguese Government that he was an independent
King, undisputed ruler over Matabeleland and Mashonaland who had not parted with his
sovereignty, though his territory was under British influence; and in 1889 the Colonial Secretary
wrote to Lobengula himself, saying that he, Lobengula, is King of the country (i.e. of
Matabeleland), and no one can exercise jurisdiction in it without permission. Lobengulas
sovereignty over what is now Southern Rhodesia is therefore the starting point . . .
Such recognition of original tribal sovereignty occurred, however, in contexts where
there was no possibility of the common law allowing any residual sovereignty to the
chiefs. The Privy Council regularly recognized the cession of African chiefs as the basis
of Crown sovereignty in Africa, as also (and contrary to the position of local courts) in
New Zealand.380 Yet according to late nineteenth-century common law doctrine, the
nature of the Crowns territorial sovereignty was such that there could be no room for
any other authority subsequent to formal annexation. Whatever the original sover-
eignty had been, there was no doubt under the common law that it disappeared upon
the Crowns acquisition of sovereignty. This was so even though the treaty of cession
may have contemplatedas often it did (as in New Zealand, Lagos, and Fiji, to recall
some important examples appearing in this chapter)residual authority in the native
chiefs. De jure the Crowns sovereignty was regarded as absolute even if subsequent to its
assertion de facto the tribal chiefs and other potentates retained significant authority.
Englands positivist jurist, John Austin, had insisted that a sovereign was subordinate
to no one, stating that no government is sovereign and subject at once.381 Moreover
even before Austin held intellectual sway late in the nineteenth century, any division of
the Crowns own declared sovereignty was inconceivable for lawyers (throughout that
century). This refusal to divide the Crowns avowed sovereign power made it impossible
for the common law to recognize any subsisting sovereign status of the tribes.
Something resembling the Marshall doctrine in the United States was not doctrinally
possible under the deferential common law untilwe are about to see1891 at the
earliest. By then, however, the common law principles regarding the status of the
aboriginal peoples polities in Australasia and Canada had been so set that the retroactive
reversal and adoption of a divided sovereignty model was no longer feasible. Even though
such a result may then have been more consistent with the Crowns earlier promises to
those peoples and the actual state of things, legally it was an impossible result.
To some extent that non-recognition of the status of native chiefs and polities
subsequent to Crown sovereignty was qualified in Africa where the policy of Indirect
379
Other cases recognizing the capacity of African tribes to enter into treaties of cession include Cook v
Sprigg [1899] AC 572 (PC); Amodu Tijani v The Secretary, Southern Provinces [1921] 2 AC 399; Oyekan v
Adele [1957] 2 All ER 785 (PC); Ol De Njogo v Attorney-General [1913] Kenya Law Reports 70 (East Africa
CA), holding that agreements with Masai chiefs were not enforceable contracts but international treaties
unenforceable in municipal courts.
380
Hoani Te Heu Heu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC) (original sovereignty
of Maori tribes recognized); and these cases recognizing the sovereign capacity of the native King Docemo in
ceding Lagos in 1862: Attorney-General (Southern Nigeria) v John Holt & Co [1915] AC 599 (PC); Amodu
Tijani v The Secretary (Southern Provinces) [1921] 2 AC 399 (PC); Oyekan v Adele [1957] 2 All ER 785 (PC).
381
Province of Jurisprudence Determined (1832) 241.
Rule recognised the existence of traditional indigenous authorities . . . [and] allowed

them to exercise a wide range of customary powers, subject to the use of these powers
being brought under statutory regulation and administrative supervision.382 The same
principle was rehabilitated by the Raj in the late nineteenth century. This continuity of
native political authority and processes was not grounded in any notion of residual or
remnant native sovereignty, however. That is, it had no legal basis, but was seen as
permissive, tolerant, and subject to the paramount authority of the Crown. As Lord
Hailey stressed in his influential report on sub-Saharan Africa (1957), Indirect Rule
was preferred because in the regions where it was practised there was no Anglo-settler
population requiring a distinctly British form of governance. Lord Lugard, the famous
British colonial administrator of an earlier generation, presented Indirect Rule as a
means of exercising Crown sovereignty through the traditional chiefs, commenting
that a colonial official would consider it as irregular to issue direct orders to an
individual native . . . as a General commanding a division would to a private soldier,
except through his commanding officers.383 In any event, the ostensible recognition of
native political authority and customary law under Indirect Rule has since been
characterized as a sense of continuity constructed by colonial officials and courts
concealing the transformative and Anglicizing processes at work.384 Indirect Rule did
not place the Crown and native authorities within any model of split or layered sover-
eignty. It was born of the pragmatic needs of the imperial frontier and technically the
situation of the Crowns sovereignty under it was as simple and as Hobbesian as that
which applied in all other territories of the Crown.
(ii) Extra-territorial jurisdiction and the Protectorate

Protectorates became an increasingly regular feature of British imperial practice during
the second half of the nineteenth century, especially with mounting European rivalry
in Africa and the Pacific. Vattel had spoken of protected states in the mid-eighteenth
century, but at the beginning of the nineteenth, British experience had been limited to
the Ionian Islands. By the end of the century that inexperience had turned into familiar
practice, although the common law lagged in not examining the legal character of the
protectorate until early in the twentieth century. The legal principles affecting the
Crowns exercise of an extra-territorial jurisdiction in regions inhabited by tribal
peoples were threaded through British practice during the nineteenth century. There
remained, however, major jurisdictional issues that were not resolved for a good while.
Early in the twentieth century, the common law recognized a model of divided sover-
eignty to describe the protectorate. The final part of this chapter will describe how that
recognition came about, but it will be seen also that this new model of Crown
sovereignty, like the colonial ones already in place in Australasia and Canada by the
mid-nineteenth century, was one which put those relations into an extra-legal area.
382
M Hailey, An Africa Survey Revised 1956: A Study of Problems arising in Africa South of the Sahara
(Oxford: Oxford University Press, 1957) 414.
383
Quoted in R Oliver and A Atmore, Africa since 1800 (Cambridge: Cambridge University Press, 1967) 162.
384
For instance FG Snyder, Colonialism and legal formthe creation of customary law in Senegal
(1981) 19 Journal of Legal Pluralism 49; S Roberts, Introduction: some notes on African customary law
(1984) Journal of African Law 1.
At the time of the Foreign Jurisdiction Act 1843 British practice recognized two
types of imperium that the Crown could obtain over territory beyond the realm. They
were either territorial sovereignty or extraterritorial jurisdiction. The Capitulations of
the Porte have already been given as an example of the latter. They were regarded as
conferring a personal jurisdiction upon the Crown over its own subjects in the territory
of the granting sovereign. Essentially an extraterritorial jurisdiction was based upon the
express allowance of the host sovereign and limited to British subjects. By the mid-
nineteenth century that model was coming under growing strain.
The Foreign Jurisdiction Act 1843 was necessitated by two developments. First, a
Law Officers opinion of 1826 had cast doubt upon the lawfulness of the exercise by
consular authorities of some powers of fine and imprisonment over British subjects in
the Ottoman Empire. These powers had grown gradually and in excess of those
formally granted by capitulation.385 Secondly, in Africa one George Maclean had been
exercising an extraterritorial jurisdiction over British subjects beyond the confines of
the Gold Coast forts and without the bother of any formal grant from the tribal
authorities.386 James Stephen, the influential Under-Secretary of the Colonial Office, had
despaired over finding any means of legalizing the latter situation, thinking its retroac-
tive legitimation by Westminster a usurpation of tribal sovereignty.387 The Hope Scott
Report of 1843388 laid the basis for the Foreign Jurisdiction Act of the same year.
Although the legislation was declaratory in tone, it was clearly innovative in character.389
The preamble of this Act declared that the Crown could acquire an extraterritorial
jurisdiction in foreign territory by treaty, capitulation, grant, usage, sufferance, and
other lawful means. The Act empowered the Crown to constitute such jurisdiction by
the new means of a statutory Order in Council replacing the earlier prerogative power.
The words grant, usage, sufferance and the rather nebulous other lawful means were
significant, for they indicated that the Crown now believed an extraterritorial jurisdiction
could be acquired other than by express grant of the host sovereign.
Implicitly that measure enabled the percolation into British practice and law of the
distinction we have already seen as then beginning to emerge in European state practice
between civilized and uncivilized nations. That infiltration was apparent in Papayanni
v Russian Steam Company (The Laconia) (1863). 390 Doctor Lushington indicated that
any extraterritorial jurisdiction in civilized regions constituted under the Foreign
Jurisdiction Act was governed strictly by the terms of the host sovereigns grant.
385
Hall, Foreign Powers and Jurisdiction, above, 133 and 149150.
386
GE Metcalfe, Maclean of the Gold Coast (London: Oxford University Press, 1962) 170171 and 177.
As to the legality of this jurisdiction see Stanley to Hill, 16 December 1843, CO 96/5. Maclean argued
unsuccessfully that Britain held the de facto sovereignty of the region: Maclean to Stanley, 2 February 1844,
ibid. The Gold Coast factories were assumed by the Crown in 1843 (where sovereignty was held) whilst a
series of protection treaties or bonds were negotiated with the Fanti and other tribes. The Gold Coast, with
Ashanti (conquered after a series of wars, 1901), Northern Territories (Protectorate) [refer Order in Council
of 26 September 1901] and Togoland (Mandate, then Trusteeship) became the independent country of
Ghana in 1957. See Roberts-Wray, Commonwealth and Colonial Law, 788790.
387
Stephen to Hope, 26 December 1842 in CO 96/2.
388
Text in W Hope Scott, Report on British Jurisdiction in Foreign States, Lincolns Inn, 1843 reprinted
as Appendix VI in H Jenkyns, British Rule and Jurisdiction beyond the Seas (Oxford: Clarendon Press, 1902).
389
Cf Papayanni v Russian Steam Company (1863) 2 Moo PC (NS) 161, 15 ER 862, 870.
390
(1863) 2 Moo PC (NS) 161.
He went on to indicate that extraterritorial rights were not so constrained to the terms
of the formal grant in uncivilized countries. Still the predicate of the Foreign
Jurisdiction Act remained, namely that any jurisdiction was derivative in character
notwithstanding the imperfection of any informal acquisition from an uncivilized
power. The Foreign Jurisdiction Acts very quickly became important tools of British
imperial activity during the nineteenth to early twentieth centuries as the frequency of
Orders in Council under their authority indicated.391
Despite this usefulness, the Foreign Jurisdiction Act still suffered some defects that
hampered British practice in relation to the acquisition and constitution of satisfactory
rights of governance in uncivilized territory over which no claim to territorial sover-
eignty was being made. In particular, the treaty, capitulation, grant, usage, sufferance,
and other lawful means, for all its vagueness, supposed some local authority from whom
the Crown might obtain the requisite jurisdiction. That supposition was sound enough
in European and Asian392 regions where the jurisdiction was designed to exempt English
subjects from a regular lex loci. However in Africa and Pacific, the new theatres of British
imperial activity during the second half of the nineteenth century, there was no mistak-
ing the function of the Foreign Jurisdiction Act as a means of bringing order to regions
where none (at least in British eyes) had previously existed.
With regard to Africa, the Crown mostly accepted that it could acquire jurisdiction
over its own subjects and native inhabitants by treaty, grant, usage, or sufferance from the
native chiefs.393 The same position was less easily taken in relation to the Pacific, not
through any objection in principle to the recognition of some juridical status in the island
communities. The Crowns practice in Africa precluded that. Rather, the Foreign Office
held severe doubts as to the stability of the native governments in the Pacific islands.394
The reports of its officers395 from the Pacific depicted island communities in a constant
391
See Hall, Foreign Powers and Jurisdiction (1894) for an Index of Orders in Council at 298 showing
the regularity and frequency with which the Acts were used. See also L Hertslet (ed), Hertslets Commercial
Treaties (London, 18271925), vol XXII, 626646 listing British treaties of jurisdiction and the Orders in
Council under the Foreign Jurisdiction Acts establishing such rights.
392
The Crowns foreign jurisdiction in Eastern countries (such as Turkey, Persia, China, and Japan) was
usually distinguished from that in barbarous (ie tribal) regions: Hall, Foreign Powers and Jurisdiction, 122,
Jenkyns, British Rule and Jurisdiction, chs viii and ix; Paunceforte, Papers relating to Foreign or Ex-territorial
Jurisdiction in FO 91/497 (nf ) (no date, c 1876).
393
Instructions to Lieu-Gov Hill, 16 December 1843 in CO 96/2:121132. The Bond of 6 March 1844
with the Fanti Chiefs (96 CTS 235) was concluded to regularize British jurisdiction on the Gold Coast (Hill
to Stanley, 6 March 1844 in CO 96/4:98); Merivale, Memorandum for Cabinet, April 1851 in CO 879/1xx;
Holland, Minute of 25 June 1874 in CO 96/113:416427; Law Officers to Kimberley, 3 August 1880 in CO
48/498:81; Law Officers to Granville, 21 April 1886 in FO 84/2275:81. Also the following Orders in
Council: Africa (1892 and 1899, the latter applying to natives of Africa, being subjects of any native King or
Chief, who, by Treaty or otherwise, consents to their being subject to the jurisdiction); West Africa (1885);
Gold Coast (1844, 1856, 1874, and 1887); Sierra Leone (1850, 1853, 1895); Gambia (1893); Lagos (1887);
Niger Region (1872); Mashonaland and Matabeleland (1894); South Rhodesia (1898); Northwest Rhodesia
(1899); Northeast Rhodesia (1900); Bechuanaland (1885 and 1851); East Africa (1897 and 1899).
394
Foreign Office reference to Law Officers, 18 October 1866 in FO 83/2314:282284 and 302305;
Law Officers to Stanley, 18 May 1868 in FO 58/124:162168; Foreign Office to Colonial Office, 2
February 1869 in FO 58/124:20, 28; Law Officers opinion, 22 July 1871 in FO 83/2314; Law Officers to
Carnarvon, 10 April 1875 in CO 881/4:no 42; Paunceforte, Memorandum on HM Jurisdiction in Western
Polynesia, 1876 (no date) in FO 97/497 (nf ).
395
Two influential British officials in the Pacific, Jones and Thurston, determined the British position on
the juridical status of the island communities during the third quarter of the nineteenth century: Jones to
state of warfare with no tribal ruler ever in a prolonged and stable ascendancy so as to
facilitate relations from which any jurisdiction, formal or informal, might arise. This
doubt about the treaty-making capacity was not limited in the late nineteenth century
to the Pacific but occurred also in relation to the Nuer of the southern Sudan396 and the
Sakai of the Malay Peninsula.397 In British eyes perpetual war, leaderlessness, and sheer
primitivism all excluded the possibility of treaty relations. As with the Australian
Aborigine the British required a minimal level of evident political organization before
treaty relations of any type became conceivable.
During the late 1870s colonial officials insisted that the Crown could unilaterally estab-
lish a jurisdiction over the natives inhabiting and British subjects resorting to uncivilized
territories and a draft bill to that effect was prepared.398 However the Crown only budged
Foreign Office, 6 October 1864 in FO 58/124:3538; Jones to Foreign Office, 24 November 1865, ibid,
6568; Jones, Report on the Present Social and Political Conditions of the Fiji Islands, enclosure in Jones
to Foreign Office, 18 July 1867, ibid, 8089; Jones influence noted in Law Officers to Stanley, 18 August
1868 in FO 83/2314:308311; Thurston to Belmore (NSW), 22 July 1868 in CO 881/3:20 at 3839;
Thurston to Colonial Office, 2 September 1892 and 22 December 1894 in CO 225/45.
396
The Nuer were a pastoral people living along the upper Nile, with no laws or leaders and were strongly
individualistic, with social order maintained by community values and a segmentary tribal and lineage system.
The classic account is EE Evans-Pritchard, The Nuer: A Description of the Modes of Livelihood and Political
Institutions of a Nilotic People (Oxford: Oxford University Press, 1940). Nilote is a term for the indigenous peo-
ples living on or near the Bahr al Jabal and its tributaries. The term refers to people speaking languages of one
section of the Nilotic sub-branch of the Eastern Sudanic branch of Nilo-Saharan and sharing a myth of com-
mon origin. They are marked by physical similarity and many common cultural features. Many had a long tra-
dition of cattlekeeping, including some for whom cattle were no longer of practical importance. Because of
their adaptation to different climates and their encounters, peaceful and otherwise, with other peoples, there
was also some diversity among the Nilotes. Despite the civil war and famine, the Nilotes still constituted more
than three-fifths of the population of southern Sudan in 1990. One groupthe Dinkamade up roughly
two-thirds of the total category. The next largest group, only one-fourth to one-third the size of the Dinka, were
the Nuer. Relations among Nilotic peoples were affected in the nineteenth century by the intrusion of
Ottomans, Arabs, and eventually the British. Some ethnic groups made their accommodation with the intrud-
ers and others did not, in effect pitting one southern ethnic group against another in the context of foreign rule.
For example, some sections of the Dinka were more accommodating to British rule than were the Nuer. These
Dinka treated the resisting Nuer as hostile, and hostility developed between the two groups as result of their dif-
fering relationships to the British. The granting of Sudanese independence in 1956, and the adoption of certain
aspects of Islamic law or the sharia, by the central government in 1983 greatly influenced the nature of relations
among these groups in modern times. (See http://lcweb2.loc.gov/frd/cs/sdtoc.html.)
397
The Sakai were the indigenous inhabitants of the part of the Malay Peninsula known as Negri Sembilan
(Nine States) that came under British protection in 1886. This region was treated as a single entity in the late
nineteenth century.
398
Gorrie (Chief Justice of Fiji) to Hicks Beach, 16 September 1878 in CO 225/1; Hicks Beach to Law
Officers, 4 January 1879, ibid 303, 310; Law Officers to Hicks Beach, 20 March 1879 (jurisdiction over natives
required Order in Council under the Foreign Jurisdiction Act or territorial sovereignty) in CO 225/4:2325;
Herbert, note regarding Sir A Gordons (Western Pacific High Commissioner) complaints about lack of juris-
diction over natives, 22 May 1881 in CO 225/9:303, 310; Selborne LC noting that any such legislation despite
the theoretical difficulty should be carefully limited to acts of murder or other violence . . . in order to bring it,
as distinctly as possible within recognised principles of jurisprudence, 30 May 1881, ibid 314. Draft Bill of 1881
giving Her Majesty power to erect courts to try natives for any crimes of violence with the proviso that this Act
shall not be deemed to confer on Her Majesty any dominion or sovereignty over the Pacific Islands or the inhab-
itants thereof in CO 225/11:1920. Jenkyns to Herbert, note agreeing with Law Officers condemnation,
4 April 1882, ibid, 2126; Earl of Derby, note calling the Draft Bill a complete innovation in regard to its theory,
31 January 1883, ibid 18. The Draft Bill lapsed: Johnston, Sovereignty and Protection, 138. In 1865 the Law
Officers had condemned an American Act of Congress, similar to the Draft Bill of 1881, as incapable of confer-
ring a jurisdiction upon American Consuls over natives who had not conceded or recognized American
authority: Law Officers to Russell, 5 May 1865 in FO 83/2314; Russell to Jones, 11 May 1865 in FO 58/124.
to the extent that it now accepted it might unilaterally erect a jurisdiction in such regions
over its own subjects only and without any grant or sufferance of any native authority.399
Special legislation, regarded at the time as innovatory400 was passed, namely the Pacific
Islanders Protection Act 1875401 and the Foreign Jurisdiction Act 1878.402 For the first
time these Acts gave the Crown the statutory power to establish jurisdiction by Order in
Council over its own subjects in particular uncivilized territory. The jurisdiction was
limited to British subjects and those natives voluntarily submitting to its exercise.403
Towards the end of the nineteenth century another shortcoming in the Foreign
Jurisdiction Acts became plain. The weakness concerned the authority the Crown
could assert over nationals of other European states within territory over which Britain
claimed exclusive influence though not the territorial sovereignty. The forms of
jurisdiction available by the final decade of the century allowed the Crown to erect
jurisdiction over its own subjects unilaterally if needs be where no stable native polity
existed in uncivilized territory. The Crown could also exercise authority over native
peoples where that had been granted by their chiefs. The nationals of other European
states resorting to those territories were not, however, within that jurisdictional
compass.404 A minute by Davidson (1887), then legal adviser to the Foreign Office,
explained the rationale. Since uncivilized tribal nations lacked the ability (unlike the
Eastern potentates) to enforce their criminal law they could hardly grant to the Crown
a competence (to enforce the law amongst the European population within their terri-
tory) which they themselves lacked. A nation could grant extensive jurisdiction to
another state within its own territory whilst still retaining the underlying sovereignty,
Davidson explained; it could part in theory either with all it possessed or any portion
399
Law Officers to Stanley conceding for the first time that imperial legislation might give a
Commissioner limited jurisdiction in Civil and Criminal Cases over British subjects in the Pacific islands
where a jurisdiction could not be got from native authorities for the purposes of the Foreign Jurisdiction Act,
18 August 1868 in FO 83/2314:308311. Reillys Draft Bill (enclosure in Memorandum, 1 January 1869
in FO 58/124:227) to that effect eventually lapsed (Vivian to Holland, 4 April 1871, ibid 312315) but the
principle resurfaced in the Pacific Islanders Protection Act 1875.
400
Paunceforte, Memorandum on Her Majestys Jurisdiction in Western Polynesia 1876 (no date) in
FO 97/497:nf.
401
38 & 39 Vict cap 51; see permissive opinion of Law Officers to Carnarvon, 10 April 1875 CO
83/8:3336.
402
41 & 42 Vict cap 67. The 1875 Act was used as the precedent for this Act which was passed in response to
problems in the Congo: Memoranda of Reilly (17 January 1878) and Jenkyns (3 July 1878) in FO 97/489 (nf).
403
In the Pacific the Colonial Office insisted (see note to Foreign Office, 26 August 1892 in FO 58/273)
and the Law Officers agreed (17 November 1892, ibid) that any jurisdiction held by the Western Pacific High
Commissioner under the Pacific Orders in Council under the 1875 Act was, so far as native persons amenabil-
ity was concerned, dependent on an explicit or implied grant by the protected Sovereign . . . in whom such
jurisdiction was (in theory at any rate) originally vested. As to the High Commissions acquisition of such
jurisdiction by treaties and Resident Commissioners, see generally D Scarr, Fragments of EmpireA History
of the Western Pacific High Commission 18771914 (Canberra: Australian National University Press, 1968) at
252289. The SCI includes only the Tonga treaties (at 322); the sovereignty of the Tongan Kings, unlike that
of other island communities, was recognized as early as 1864 when Jones urged a treaty be concluded with the
reigning chief King George: Jones to Foreign Office, 6 October 1864 in CO 58/124:3538.
404
Law Officers to Russell, 5 May 1865, FO 83/2314:280281; Law Officers opinion, 12 March
1870, CO 881/4: 20, 8283; Law Officers and Dr Deane to Granville, 13 January 1874, FO 834/11:113,
84; Law Officers to Stanley, 10 August 1885, CO 417/8:4655; Law Officers Report on British
Jurisdiction in Protectorates, 29 June 1887, FO 64/1208:121122; Wright, Memorandum, 18 November
1888, CO 97/562 (nf ).
of it but not with more than it possessed or had by showing itself able to enforcereduced,
so to say, into possession.405
The other European nations, Germany in particular,406 did not share such objections,
taking the position that a Protectorate gave jurisdiction over all foreigners.407 The
Protectorate became a popular form of European imperialism during the second half of
the nineteenth century, but for Britain the legal difficulties over asserting jurisdiction over
European nationals remained a stumbling block. Outright annexation of large regions in
Africa and the Pacific Islands was usually unpalatable (though a British Protectorate often
became a precursor to eventual annexation408) and inconsistent with the ostensible justifi-
cation given by the European nations to explain the scramble for domination in Africa
and the Pacific. It was argued that the backward peoples required protection and tutelage
in the ways of civilizationthe so-called sacred trust of civilisation.409 Annexation of large
areas of their territory would have been incompatible with that protestation of temporary
wardship and would have aggravated European rivalry in the African and Pacific theatres
of competition. The scramble for dominance thus became a race to obtain native agree-
ment to protection by a European power, a race in which Britain no less than any other
European nation was an active participant. Protection involved the assumption of control
over an uncivilized nations external relations, including the activity of foreign nationals.
Effectively the Protectorate was a device to exclude other European nations from a region
without any claim to the territorial sovereignty.
English law could not accommodate the Protectorate in the form the other European
states were applying it, particularly during the last quarter of the nineteenth century. In
1891 a change of mind occurred. In that year the Crown performed an about-face and
began to act on the basis that a Protectorate also conferred rights over the nationals of other
European states. It thus became an arrangement somewhere between the entirely personal
imperium of extraterritorial jurisdiction and the full authority of territorial sovereignty.
The consent of the European states to British jurisdiction over their nationals within a
Protectorate was inferred from the proceedings at the Conference of Berlin (1890).410
Those British doubts about their jurisdiction over foreign nationals in Protectorates
had been fuelled by their subscription to the Austinian notions of sovereignty that by
405
Note (no date, circa June/July 1887) in FO 64/1208:117118; similarly Law Officers to Carnarvon,
10 April 1875 in CO 83/8:3336.
406
Hatzfeldt, notes verbale, 11 May and 29 August 1886, FO 64/1152; Law Officers Report (inter alia
on the German law), 29 June 1887, FO 64/1208:121122; Salisbury to Hatzfeldt (draft), August (no date)
1887, FO 97/562:nf; Scott, Memorandum on German Laws, 13 September 1887, ibid.
407
Hatzfeldt, notes verbale, 11 May and 29 August 1886 in FO 64/1152; Law Officers Report (inter alia
on the German law) 29 June 1887 in FO 64/1208:121122; Salisbury to Hatzfeldt, draft, August (no date)
1887 in FO 97/562:nf; Scott, Memorandum on German Laws, 13 September 1887, ibid.
408
The following British territories were initially Protectorates: Southern Rhodesia (annexed 1923)
although British sovereignty arose earlier by conquest of Lobengula in 1894: Re Southern Rhodesia [1919]
AC 211; Kenya (annexed 1920); Basutoland (annexed 1871); Gold Coast or Ghana (annexation of areas
under Her Majestys protection but not part of her Dominions, 1901); New Guinea (annexed 1888); Gilbert
and Ellice Islands (annexed 1915).
409
CH Alexandrowicz, The Juridical Expression of the Sacred Trust of Civilisation (1971) 65 American
J Intl L 149.
410
Fairfield, minute of 9 January 1891 in CO 417/48:249255; Bramston, minute of 11 February 1891
in CO 417/72; Bramston, Memorandum, 20 February 1891 in CO 417/69:578587; Law Officers to
Knutsford, 17 April 1891, ibid, 118124. Generally Johnston, Sovereignty and Protection, above, 229269.
then had become influential. Austin, it may be recalled, had insisted against the
divisibility of sovereignty, stating that no government is sovereign and subject at
once.411 In 1888 Henry Maine had described sovereignty as a bundle of rights each of
which might be separated from the other.412 Other important imperial officials such as
Jenkyns413 and Ilbert414 agreed with Maine but the British did not take this position
officially until 1891. Soon after, English courts came to assess the legal status of the
native inhabitants of a Protectorate. The courts took the position that the Crown had
acquired the external sovereignty of the region leaving the indigenous political author-
ity with the internal. This internal sovereignty left the indigenous institutions and laws
intact and ensured the native polities nominal retention of the title of territorial sover-
eign. The recognition of the internal sovereignty did not imply, however, that in estab-
lishing the Protectorate the Crown had deprived the native state of its external
sovereignty. Being uncivilized those native states had never had this attribute, so by the
act of protection the Crown had stepped into the vacuum. It donned the external sover-
eignty until such time as the native polities had, by the civilizing process, grown into it
themselves. Moreover, within the Protectorate the Crowns relations with the native
inhabitants remained non-justiciable, falling as they did under the foreign relations pre-
rogative power.415 The terms of a treaty of protection were, therefore, unreviewable. Any
enforcement lay completely beyond the reach of the common law.
The Protectorate was for the common law an essentially non-justiciable arrange-
ment. This was precisely the same position it had taken during the nineteenth century
in relation to tribal polities in regions where the Crown held the territorial sovereignty.
It was also the position taken in the act of state cases concerning British treaties (often
of protection) with the Indian princely states.416 In these cases it was invariably held
that the terms of a treaty of protection or similar engagements with the Crown
(through the East India Company) were incapable of enforcement in municipal
courts. By the beginning of the twentieth century the common law had reached the
stage where it was prepared to recognize the division of sovereignty over territory, but
that was limited to the Protectorate over uncivilized people. Even were the divided sov-
ereignty, Marshall-like model of the Protectorate available to the common law courts
in British colonies during the nineteenth century and even had colonial judges and
administrators been minded to use it in describing Crown relations with aboriginal
peoples, there is no doubt it would have made little difference in the legal result: the
conduct of native policy and relations would have remained non-justiciable even if the
411
John Austin, The Province of Jurisprudence Determined (1832) 241. The position is Hobbesian in
origin: Leviathan (1651) II, xviii and 12.
412
International Law (1888) 58. The proposition was hardly novel. Many writers before Maine had
recognized the divisibility and incompleteness of sovereignty in semi-sovereign states. For instance:
Wheaton, Elements of International Law (1836) 62; Halleck, International Law (1861) 62; Woolsey,
Introduction to the Study of International Law (1875) 28.
413
Application of Principles of International Law to Foreign Subjects in British Protectorates,
26 November 1888, in CO 97/562. See Jenkyns, British Rule and Jurisdiction, above, 165180.
414
Memorandum upon Indian and African Protectorates, 24 January 1889, in CO 97/562.
415
R v Earl of Crewe ex parte Sekgome [1910] 2 KB 576; Sobhuza II v Miller [1926] AC 518.
416
Nabob of the Carnatic v East India Company (1793) 2 Ves Jun 56; East India Company v Syed Ally (1836)
1 Moo PC 555; Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 7 Moo Ind App 476, 19
ER 388; Rajah Salig Ram v Secretary of State for India in Council (1872) LR Ind App Sup, vol 119, 120.
common law were to have recognized the internal sovereignty of the tribes. The
common law had finally reached the stage where it could use a Marshall-like approach
to the status of tribal political structures after Crown sovereignty, but the mentality of
the Empire of Uniformity remained. The nineteenth-century common law was not
interested in reining the imperial prerogative so much as endorsing it.
6. Conclusion
This chapter has continued the history of the means by which the Anglophone polities
obtained and exercised sovereign authority over tribal peoples. It has looked at the
period after the military victories of the late 1750s when large continental regions and
their indigenous inhabitants came under British rule.
It cannot be said that British practice took a coherent position on sovereignty, at least
with regard to the position of aboriginal polities, until the mid- to late nineteenth
century. At this time the common law produced a positivized doctrine of Crown
sovereignty which denied any original or residual legal capacity in the aboriginal tribes.
Imperial and, less robustly, colonial officials rejected any notion of residual tribal
sovereignty along the lines of the American Supreme Court in the famous Cherokee Cases
of the 1830s. The Colonial Office, operating upon a guardianship principle, regarded
British sovereignty over aboriginal peoples as vital to their protection from exploitation
by settlers. However prior to the pouring of sovereignty into a doctrinaire mould, there
were at least two centuries of regular British contact with tribal societies throughout
which Crown practice had consistently recognized their contractual capacity. This
treaty-making practice had occurred in the context of a more classical, less imperative
attitude towards law and it remained practice even as a modernist Hobbesian notion of
sovereignty was hardening. In the second half of the nineteenth century British
practice towards tribal societies continued as though they were still sovereign even
whilst its law described otherwise. Even though the Crowns officers were entering into
formal treaty relations and compacts which suggested otherwise, the common law was
unable to recognize the tribes either as residual sovereigns or as lesser, non-sovereign
entities. In not recognizing the ongoing status of the aboriginal polities, the British juris-
dictions differed from the United States where from the 1830s the Supreme Court
described the residual sovereign status of the Indian tribes as domestic dependent
nations. Further, in the British settlement colonies, governmental relations with the
tribes were wrapped in an obligation of guardianship that was inherently non-justiciable.
This unenforceable Crown trusteeship reflected the hierarchical and deferential atti-
tude in the nineteenth century towards Crown prerogative. As the colonies moved
towards self-governing capacity and the imperial Crown reluctantly and belatedly
handed over legislative jurisdiction in native policy, the settler legislatures exercised
their new authority. Congress consolidated its own authority likewise in the period
after the Civil War. In Australasia and North America during the second half of the
nineteenth century the white push for land resulted in the erection of laws that chal-
lenged and weakened the tribes traditional political structures. Colonial and republi-
can authorities saw those structures as a barrier to land acquisition and aboriginal
re-acculturation. They used law instrumentally to dismantle the tribal structures.
Dispossession and marginalization became dressed in the language of assimilation.
The common laws refusal during this period and into the twentieth century to
recognize and draw juridical consequences from any such recognition of native political
forms matched the broader processes of colonization then being experienced by aborigi-
nal peoples not only in Australasia and North America but throughout the theatres of
British imperial activity: the consistent legal theme was that of the non-justiciability of
the governments formal relations with non-Christian peoples: the higher trust of civi-
lization vested in the Crown as the gentlemanly embodiment of the British Empire
reflected an imperial and colonial culture that remained hierarchical. Yet that position
did not alter what from the first had been an unwavering feature of British practice (how-
ever unscaffolded that was initiallyor at least until Vattel wrote in the mid-eighteenth
centurywith any underlying conception of native juridical capacity): through over
three centuries of imperial activity dating from the settlement of the New World, the
Crown had refused to assert any jurisdictional competence over non-Christian peoples
(as sovereign or protector) without their previous consent. The Crown consistently
recognized the capacity of non-Christian rulers and chiefs to make such grants of juris-
diction. The American republic continued that pattern. Of the British settlement
colonies, Australia was the only exception. When called upon to review and enforce the
terms of these agreements or concessions the common law was highly deferential to
Crown prerogative. It saw the enforcement of such engagements between the Crown and
native polities as a matter of high policy between the contracting parties. For the common
law, such pacts or treaties were certainly not a matter suitable for resolution in Leviathans
own courts. Even in the United States the potential reach of the Marshall trilogys
doctrine of residual sovereignty was severely undermined and compromised by the gloss
of Congressional plenary authority and denial of tribal standing. By the end of the
nineteenth century the era of state nationalism and authoritarianism was at full tide
with its conceptual obsession with absolute, unqualified, and unqualifiable sovereignty:
sovereignty-talk, as it became more consciously the vocabulary of the states relations with
its native peoples, spoke for Leviathan in a monologic, suppressive tone.
It will be seen in later chapters that this suppressive tendency was not a complete denial
of aboriginal rights (particularly in relation to land), but it did subordinate and marginal-
ize aboriginal peoples traditional political forms. And the act of denying their sovereignty
gave them the conceptual end they would later seek to regain. A recurrent and dominant
feature of the native resurgence and claims-talk from the late 1960s was the language of
native sovereignty. That which was suppressed and denied they sought to regain. The
claim to aboriginal sovereignty became a hallmark of the era of self-determination in the
last quarter of the twentieth century. But then, as in the nineteenth century, the treatment
of tribal nations claim to distinctiveness had to be made within the framework of
common law constitutionalism. North American and Australasian political cultures
might have become more sympathetic to such claims in the era of civil and human rights,
but those still had to be located inside their common law systems that in the course of the
previous century had become, where tribal peoples were concerned, doctrinaire and
fixated with shoring rather than limiting the governmental hand.

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3

Aboriginal Sovereignty and Status in the

Aboriginal Societies and the Common Law. P.G. McHugh.

increased in North America, imperial and republican policymaking became more

2. Claiming and exercising sovereign authority over tribal

3. The trusteeship principle in British imperial and colonial

(b) The Colonial Laws Validity Act 1865

In the Governors estimation such illogical inferences on so simple a subject exhibit

5. Sovereignty and the Anglo-settler common law: the Empire(s) of

enormous influence as an expression of the ideology required by Victorian England in

Austin thus denied original sovereign status to tribal societies.

(a) Upper Canada

eighteenth-century Upper Canada by the likes of the Johnson Superintendency,

(c) Southern Africa: the eastern frontier

(d) New Zealand

this memorandum in which the recognition of Maori sovereignty mingled with

above instructions also acknowledged, that original, unqualified sovereignty would be

(e) British Columbia

6. The encroaching Empire(s) of Uniformity: native polities under legal

(a) British colonies

(ii) New Zealand

as a jurisdictional and territorial enclave governed solely by the special relationship

the Department of Interior supervision of the Indians.342 These on-reservation courts

(c) The standard of civilization in international law

As a result the European nations began to distinguish by means of a standard of

Rule recognised the existence of traditional indigenous authorities . . . [and] allowed

(ii) Extra-territorial jurisdiction and the Protectorate

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