Abstract
Indigenous identities and allegiances are influenced by many factors including cultural, linguistic, political, social, geographic and kinship ties. Our chapter examines selected Australian jurisprudence in order to question whether domestic law is capable of adequately recognising aspects of Indigenous identity. The place that law occupies in Indigenous Australian societies is not analogous to the role the Australian legal system plays for non-Indigenous society. Indigenous law, in the Indigenous context, can inform one’s position in a network among kin and regulates behaviours, duties and obligations in relation to one’s own group and country as well as towards other Indigenous and non-Indigenous peoples. The chapter begins by exploring the theoretical legal constructions of Indigenous identity as contextualised by historical events and government policies, aimed at eradication, via assimilation, and which frames the development particularly of the early jurisprudence. This is followed by a brief discussion on ‘race’ in the Australian constitutional context. The challenges in defining the appropriate criteria and standards of evidence for the legal establishment of indigeneity of individuals are then discussed in relation to the three-part test in Shaw v. Wolf. Identity was also central in the first successful Stolen Generations case of State of South Australia v. Lampard-Trevorrow, which is also briefly considered. This chapter then considers the constructions of collective indigeneity in relation to Indigenous societies by examining the native title case of Members of the Yorta Yorta Aboriginal Community v. State of Victoria and placing it within a more general critique of native title jurisprudence, with the aim of questioning how the legal dimensions of Indigenous Australian allegiance and identity can better accord with Indigenous peoples’ right to determine their own identity or communal membership in accordance with their customs and traditions.
Original language | English |
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Title of host publication | Allegiance and Identity in a Globalised World |
Publisher | Cambridge University Press |
Pages | 142-166 |
Number of pages | 25 |
ISBN (Electronic) | 9781139696654 |
ISBN (Print) | 9781107074330 |
DOIs | |
Publication status | Published - 1 Jan 2014 |