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4 Tribal Constitutionalism and Historic Claims: The Impact of Claims Settlement on Tribal Membership Governance in Australia and New Zealand

From: Tribal Constitutionalism: States, Tribes, and the Governance of Membership

Kirsty Gover

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 16 January 2021

In Australia and New Zealand, the official recognition of tribes occurs alongside the settlement of land claims. This chapter investigates the scope of tribal autonomy in membership governance in Australia and New Zealand, based on the membership rules contained in institutions established to manage tribal rights to land and territory: New Zealand Treaty Settlement Entities (TSEs) and Australian Registered Native Title Bodies Corporate (PBCs). Claims settlement processes impact on tribal membership governance by requiring a legal definition of the class of beneficiaries, and by prescribing formal membership criteria. Thereafter tribes have the capacity (within certain limitations) to alter their membership criteria to exclude legal beneficiaries from tribal membership. The result is a distinction between the class of people entitled to benefit from a settlement or determination, and persons entitled, as a matter of tribal law and custom, to be recognized as members of the tribe. The categories are imperfectly aligned. This chapter examines the strategies used by tribes and states to overcome the resulting impasses.

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