Does law constitute identity? Indigenous allegiance and identity in Australia

Asmi Wood*, Jo Anne Weinman

*Corresponding author for this work

    Research output: Chapter in Book/Report/Conference proceedingChapterpeer-review

    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 languageEnglish
    Title of host publicationAllegiance and Identity in a Globalised World
    PublisherCambridge University Press
    Pages142-166
    Number of pages25
    ISBN (Electronic)9781139696654
    ISBN (Print)9781107074330
    DOIs
    Publication statusPublished - 1 Jan 2014

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