Determining Membership: Aboriginality and Alienage in the Australian High Court

Abstract

The place of Aboriginal and Torres Strait Islanders in Australia’s legal and political framework, including the federal Constitution, is a matter of profound importance and ongoing debate. In 2017, Indigenous leaders authored the Uluru Statement of the Heart, in which they confirmed that Indigenous sovereignty has “never been ceded or extinguished, and co-exists with the sovereignty of the Crown”. With “substantive constitutional change and structural reform”, they wrote, the “ancient sovereignty” of the Aboriginal and Torres Strait Islander peoples “can shine through as a fuller expression of Australia’s nationhood”. Accordingly the statement called for “the establishment of a First Nations..