Prof. Phil Falk, Wiradjuri and Ngemba Nations, concludes his exploration of the Colonial Foundations of Australia’s National Native Title Tribunal 19 May 2025 decision
If i may add some additional material — food for thought, excerpted from my book:
on relative disempowerment:
"...Singer dug deeper and raised an ontological question. He said, ... "But what happens if we take the law of American Indian property as a central concern rather than as a peripheral one? What happens if it is the first thing we address, rather than the last?” Singer answered his own question: “If we start our analysis of the relation between sovereignty and property by asking how the law treats the original possessors of land in the United States, we learn some valuable lessons about property law generally.”25
Professor Milner Ball took a similar approach in his 1987 study Constitution, Court, Indian Tribes, saying,
"Because we say we have a government of laws and not men, we hold our government to be limited and to have no unlimited power. If the federal government nevertheless exercises unrestrained power over Indian nations, then what we say is not true, and we have a different kind of government than we think we have. . . . The Court is regarded as the institution of restraint and a protector of rights. If the Court restrains neither Congress nor itself in taking away tribal rights, then we are confronted by a fundamental contradiction between our political rhetoric and our political realities."26
on the fiction of state authority:
Justice Miller could not confine federal anti-Indian law within the Constitution because it is an exception from the constitutional structure. Miller’s statement, “The right of exclusive sovereignty . . . must exist in the national government,” precisely matches Agamben’s description of the exception as “the situation that the law needs for its own validity . . . the condition of possibility of juridical rule.” Miller did not consider whether U.S. power was limited to dealing with the Hoopa as an independent nation because that would undermine the U.S. claim of sovereignty.
on ontological/philosophical battle:
I wholly agree that to think about practical steps for challenging the doctrine we need a serious survey of the philosophical terrain as a platform for tactics and strategy. I have an essay coming out in the fall at Syracuse, titled: "Federal Anti-Indian Law : Why a Challenge to “Christian Discovery” Creates a Metaphysical Crisis for the US" I'll email you each a copy....
Thank you for these additions Peter …each one sharpens the edges of the problem in ways that resonate deeply with where this work is going.
Singer’s question: what happens when we centre Indigenous law rather than treat it as peripheral, is exactly what the Tribunal avoids. They proceed as if sovereignty begins with the state and not with the land or the people who belong to it. It’s a structural evasion, not just a legal error. The Milner Ball quote drives it home: the supposed constitutional restraint evaporates the moment Indigenous nations are involved. What we’re left with is settler exceptionalism cloaked in the language of rule of law.
Your framing around Justice Miller and Agamben is especially striking. That match between the “right of exclusive sovereignty” and the “exception” exposes how the whole edifice of anti-Indigenous law depends on pre-legal force, on a claim of authority that can’t be justified within the system itself. That’s where the contradiction lives: in the presumption that law can override lawfulness.
Settler law can’t absorb Indigenous law without collapsing into contradiction, so it performs around it, deflects it, pretends it has jurisdiction. But the ontological ground holds firm.
Thank you for your insight Peter. I look forward to reading your essay in Syracuse.
"Settler law can’t absorb Indigenous law without collapsing into contradiction,..." Yes, exactly... which is why conventional 'Indian law' practitioners / academics are pathetic in their efforts to work inside the legal box... meanwhile acting like they're trying to fight their way out a paper bag....
Professor Falk, thank you for these two enlightening essays. I’m still trying to get a basic handle on these sorts of indigenous law issues. Please correct this basic assessment wherever I go wrong. First, it seems the basic point of this sort of exegesis is to show that State claims of indigenous ‘sovereignty’ and claims to administer a ‘justice’ that is moral, not just a legal ‘justice’ that is rooted in imbedded structures of domination, are at best fictions. Second, that members of indigenous groups may have even less legal right/power than other ‘citizens’ of a constitutional regime (ironically, their purported independence may leave them even more exposed to unjust treatment). If that assessment of the analysis is correct, and if the analysis itself is correct, that would seem to point to several positive tactics that would stem from the analysis for indigenous folks. One, they could make a moral appeal to the justness of their claims. Two, they could seek to wield greater legal power by analyzing where their current legal dis-empowerment lays and adopt legal strategies and tactics in regard to that. Third, they could attempt to gain increased economic and political power so as to have their interests better represented within the polity. Four, related to the moral strategy, they could wage a philosophical/ontological battle that long term could shift the theoretical bases that current legal frameworks rest on.
Is that largely correct or where have I gone wrong or what major factors have I failed to notice? Thank you for any instruction you care to give.
Thank you W.D. James for your thoughtful engagement and careful summary. Your interpretation is largely on point. I’ll offer a few clarifications and expansions:
1. On the fiction of state authority and justice: Yes, I am challenging the presumed legitimacy of the settler state’s moral and legal claims, particularly when they assert sovereignty over peoples they never truly conquered nor entered into treaty with. The legal apparatus, including native title, is not neutral; it is deeply embedded in a colonial logic that requires Indigenous law and sovereignty to be subordinate or extinguished in order to function. In that sense, its claim to moral justice is not just flawed, it’s structurally incapable of delivering justice on Indigenous terms.
2. On relative disempowerment: You’re right to note the irony. Native title, while purporting to recognise pre-existing rights, often results in fewer practical entitlements than citizenship itself. This is because it’s a recognition conditioned by colonial standards, tenuous, limited, and contingent on settler definitions of continuity and connection. So yes, Indigenous people often end up more exposed and legally constrained, not less.
3. On strategic responses:
• A moral appeal is necessary but, standing alone, often dismissed within legal forums because the system prioritises formal legality over ethical rectitude.
• A legal strategy is crucial, but must be pursued with clear-eyed realism about the limits of the current system. Much of native title law is not about reconciling sovereignties but containing and fragmenting Indigenous claims.
• Economic and political empowerment is essential, but again, it must not come at the cost of assimilation or the dilution of sovereignty claims.
• The ontological/philosophical battle is, in my view, the most foundational and the most threatening to the existing order. It involves reasserting Indigenous law, not as folklore or culture, but as a living legal system with its own jurisprudential integrity.
Where I might add a further dimension is this: the goal is not merely to better position Indigenous people within the existing polity, but to expose and delegitimise the polity’s claim to exclusive jurisdiction in the first place. That’s the crux of the sovereignty argument, not integration, but recognition of coexisting and unceded authority.
If i may add some additional material — food for thought, excerpted from my book:
on relative disempowerment:
"...Singer dug deeper and raised an ontological question. He said, ... "But what happens if we take the law of American Indian property as a central concern rather than as a peripheral one? What happens if it is the first thing we address, rather than the last?” Singer answered his own question: “If we start our analysis of the relation between sovereignty and property by asking how the law treats the original possessors of land in the United States, we learn some valuable lessons about property law generally.”25
Professor Milner Ball took a similar approach in his 1987 study Constitution, Court, Indian Tribes, saying,
"Because we say we have a government of laws and not men, we hold our government to be limited and to have no unlimited power. If the federal government nevertheless exercises unrestrained power over Indian nations, then what we say is not true, and we have a different kind of government than we think we have. . . . The Court is regarded as the institution of restraint and a protector of rights. If the Court restrains neither Congress nor itself in taking away tribal rights, then we are confronted by a fundamental contradiction between our political rhetoric and our political realities."26
on the fiction of state authority:
Justice Miller could not confine federal anti-Indian law within the Constitution because it is an exception from the constitutional structure. Miller’s statement, “The right of exclusive sovereignty . . . must exist in the national government,” precisely matches Agamben’s description of the exception as “the situation that the law needs for its own validity . . . the condition of possibility of juridical rule.” Miller did not consider whether U.S. power was limited to dealing with the Hoopa as an independent nation because that would undermine the U.S. claim of sovereignty.
on ontological/philosophical battle:
I wholly agree that to think about practical steps for challenging the doctrine we need a serious survey of the philosophical terrain as a platform for tactics and strategy. I have an essay coming out in the fall at Syracuse, titled: "Federal Anti-Indian Law : Why a Challenge to “Christian Discovery” Creates a Metaphysical Crisis for the US" I'll email you each a copy....
Many thanks to both of you for the conversation!
Thank you for these additions Peter …each one sharpens the edges of the problem in ways that resonate deeply with where this work is going.
Singer’s question: what happens when we centre Indigenous law rather than treat it as peripheral, is exactly what the Tribunal avoids. They proceed as if sovereignty begins with the state and not with the land or the people who belong to it. It’s a structural evasion, not just a legal error. The Milner Ball quote drives it home: the supposed constitutional restraint evaporates the moment Indigenous nations are involved. What we’re left with is settler exceptionalism cloaked in the language of rule of law.
Your framing around Justice Miller and Agamben is especially striking. That match between the “right of exclusive sovereignty” and the “exception” exposes how the whole edifice of anti-Indigenous law depends on pre-legal force, on a claim of authority that can’t be justified within the system itself. That’s where the contradiction lives: in the presumption that law can override lawfulness.
Settler law can’t absorb Indigenous law without collapsing into contradiction, so it performs around it, deflects it, pretends it has jurisdiction. But the ontological ground holds firm.
Thank you for your insight Peter. I look forward to reading your essay in Syracuse.
"Settler law can’t absorb Indigenous law without collapsing into contradiction,..." Yes, exactly... which is why conventional 'Indian law' practitioners / academics are pathetic in their efforts to work inside the legal box... meanwhile acting like they're trying to fight their way out a paper bag....
Professor Falk, thank you for these two enlightening essays. I’m still trying to get a basic handle on these sorts of indigenous law issues. Please correct this basic assessment wherever I go wrong. First, it seems the basic point of this sort of exegesis is to show that State claims of indigenous ‘sovereignty’ and claims to administer a ‘justice’ that is moral, not just a legal ‘justice’ that is rooted in imbedded structures of domination, are at best fictions. Second, that members of indigenous groups may have even less legal right/power than other ‘citizens’ of a constitutional regime (ironically, their purported independence may leave them even more exposed to unjust treatment). If that assessment of the analysis is correct, and if the analysis itself is correct, that would seem to point to several positive tactics that would stem from the analysis for indigenous folks. One, they could make a moral appeal to the justness of their claims. Two, they could seek to wield greater legal power by analyzing where their current legal dis-empowerment lays and adopt legal strategies and tactics in regard to that. Third, they could attempt to gain increased economic and political power so as to have their interests better represented within the polity. Four, related to the moral strategy, they could wage a philosophical/ontological battle that long term could shift the theoretical bases that current legal frameworks rest on.
Is that largely correct or where have I gone wrong or what major factors have I failed to notice? Thank you for any instruction you care to give.
Thank you W.D. James for your thoughtful engagement and careful summary. Your interpretation is largely on point. I’ll offer a few clarifications and expansions:
1. On the fiction of state authority and justice: Yes, I am challenging the presumed legitimacy of the settler state’s moral and legal claims, particularly when they assert sovereignty over peoples they never truly conquered nor entered into treaty with. The legal apparatus, including native title, is not neutral; it is deeply embedded in a colonial logic that requires Indigenous law and sovereignty to be subordinate or extinguished in order to function. In that sense, its claim to moral justice is not just flawed, it’s structurally incapable of delivering justice on Indigenous terms.
2. On relative disempowerment: You’re right to note the irony. Native title, while purporting to recognise pre-existing rights, often results in fewer practical entitlements than citizenship itself. This is because it’s a recognition conditioned by colonial standards, tenuous, limited, and contingent on settler definitions of continuity and connection. So yes, Indigenous people often end up more exposed and legally constrained, not less.
3. On strategic responses:
• A moral appeal is necessary but, standing alone, often dismissed within legal forums because the system prioritises formal legality over ethical rectitude.
• A legal strategy is crucial, but must be pursued with clear-eyed realism about the limits of the current system. Much of native title law is not about reconciling sovereignties but containing and fragmenting Indigenous claims.
• Economic and political empowerment is essential, but again, it must not come at the cost of assimilation or the dilution of sovereignty claims.
• The ontological/philosophical battle is, in my view, the most foundational and the most threatening to the existing order. It involves reasserting Indigenous law, not as folklore or culture, but as a living legal system with its own jurisprudential integrity.
Where I might add a further dimension is this: the goal is not merely to better position Indigenous people within the existing polity, but to expose and delegitimise the polity’s claim to exclusive jurisdiction in the first place. That’s the crux of the sovereignty argument, not integration, but recognition of coexisting and unceded authority.
Thanks again for your engagement.
What a great conversation!
Thank you Professor Falk for the corrections and elaborations. I appreciate the assistance in understanding issues and objectives.