Specific Relief for Ancient Deprivations of Property

I consider in this paper the extent to which courts rationally and on a principled basis can deny to aboriginal claimants, despite the ancientness of their claims, the specific relief of being restored to possession of their aboriginal lands where the case for such specific relief is otherwise made. The paper begins with a brief discussion of the foundations of property in the Western conception, then goes on to discuss the Europeans’ asserted title to indigenous lands and the various theories of aboriginal title that have emerged. It then explores the past and existing legal obstacles to the judicial resolution of the indigenous peoples’ claims and concludes with the proposition that unless the federal government intervenes to create new sovereign territory in substitution of aboriginal lands, specific relief is compelled. That is to say, the only just and legally sustainable substitutionary relief is substitute land.

The paper’s main focus is on aboriginal land claims in the United States, with some discussion of claims in Canada and Australia.