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38 Law & Hist. Rev. 631 (2020)
The Limits of the Law in Claiming Rights to Land in a Settler Colony: South Australia in the Early-to-Mid Nineteenth Century

handle is hein.journals/lawhst38 and id is 663 raw text is: 






The Limits of the Law in Claiming Rights to

Land in a Settler Colony: South Australia in

       the   Early-to-Mid Nineteenth Century




                         BAIN   ATTWOOD

   In the closing decades of the twentieth century, as indigenous peoples in
the United States, Canada, Australia, and New  Zealand  increasingly filed
legal suits to regain their lands or win compensation for lands that they
had lost, scholars increasingly devoted themselves to the task of explaining
the ways in which European  powers  had laid claim to indigenous people's
territories across the seventeenth, eighteenth, and nineteenth centuries.
Their research invariably emphasized  the role of the law. This was  true
not only  of legal scholars but of intellectual and cultural historians as
well. For example,  Patricia Seed asserted that the law was central to all
European  claims  of possession in the New   World, because  it was the
means  by  which  states created their legitimacy. Most of these scholars
argued that particular legal doctrines that were formulated in metropolitan
Europe  dictated the terms on which  imperial powers claimed  indigenous
people's lands at the peripheries. More particularly, it became common-
place for these scholars to argue that a doctrine called terra nullius was
especially important in this regard.'



  1. Brian Slattery, The Land Rights of Indigenous Canadian Peoples (PhD diss.,
University of Oxford, 1979); Henry Reynolds, The Law of the Land (Melbourne:
Penguin, 1987); Paul McHugh, The Maori Magna Carta: New Zealand Law and the
Treaty of Waitangi (New York:  Oxford University Press, 1991); Patricia Seed,
Ceremonies of Possession in Europe's Conquest of the New World, 1492-1640
(Cambridge: Cambridge University Press, 1995), 6; and Anthony Pagden, Law,
Colonisation, Legitimisation, and the European Backgmund, in The Cambridge History
of Law in America, Vol. 1, Early America (1500-1815), ed. Michael Grossberg and
Christopher Tomlins (New York: Cambridge University Press, 2008), 17-24.

Bain Attwood  is a professor of history at Monash University, Melbourne <bain.
attwood@monash.edu>.  He thanks the anonymous referees for their helpful reports
and the Law and History Review editorial team for their wonderful guidance.


Law and History Review November 2020, Vol. 38, No. 4
© the American Society for Legal History, Inc. 2020
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