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