Lords of the land : indigenous property rights and the jurisprudence of empire / Mark Hickford.

Includes bibliographical references (pages 463-499) and index.

1. Preliminaries -- Overture---forging native title in an empire of variations, 1837 to 1862 -- Chapter outline -- Three key ingredients---non-justiciability, conceptual incommensurability, or jurisdictional incommensurability: the pre-eminence of politics and political constitutionalism in the making of native title -- The dynamism of native title---the politics of negotiability and the jurisprudence of empire -- `Lords of the Land'---mid-nineteenth-century New Zealand was not a place for `Banal Constitutionalism' -- Unravelling and reframing Maori constitutional and political thought on territorial rights -- 2. An Empire of Variations: Problems of Settlement and the Property Rights of Indigenous Populations -- Seeing native title through stadialism and ius gentium entwined -- Trails of transmission to a particular colony and the relevance of empire -- A New Zealand Association advocating `Systematic Colonization' -- From Association to Company -- A corporation acquiring territories -- Several proclamations and a treaty -- Conclusion: conversing with a corporation -- 3. Incredulity from a Distance: Disputing the Content of Indigenous Proprietary Entitlements, 1840 to 1844 -- Disciplining `Adventurers Without Law': the uses of ius gentium, 1840 to 1844 -- Unsettling intelligence, `Disciplining Moments', and the extent of native title -- Conclusion -- 4. 'Vague Native Rights to Land': Constitutionalism, Native Title, and Pursuing Settling Spaces, 1844-1853 -- Interrogating customs and sources of unease -- Custom and its discontents, part I---Buller, Stanley, Hope, and Howick -- Denouement: two Greys and the survival of `Occupancy', 1845-1853 -- Symonds contextualized -- Placing the Treaty of Waitangi---native title and court decisions as a resource for colonial government disciplining subjects -- Whither the Treaty of Waitangi? The conditionality of United States jurisprudence applied to New Zealand -- Custom and its discontents, part II---Martin, Merivale, and the third Earl Grey -- The Wesleyan Missionary Society, the incidents of native title, and living with abstract disagreement -- The Aborigines' Protection Society---`Magisterial Jurisdiction' and `Territorial Jurisdiction' -- Modus vivendi and proprietary rights---the politics of negotiability and living with indeterminacy -- New Zealand's lost whig foundations---diversity and balance in a `Baroque' constitution -- Institutional pluralism, constitutional adjustment, and native title---constitutions as process and negotiability -- Native title illuminating British political debates about colonial constitutional design -- Conclusions --

5. Extricating `Native Title from its Present Entanglement'---Recognizing Diversity and the Problem of a Liberal Constitution -- A jurisprudence in the shadows---balanced constitutions and native title -- Jurisdictional incommensurability, conceptual incommensurability, and non-justiciability---the electoral franchise and native title -- Jurisdictional incommensurability continued---a board of inquiry in 1856 -- `They are all entangled or matted together' -- Constitutional condominium or consociation---reconceiving Crown-Maori relations in colonial New Zealand -- This `Tendency to Self-Organization'---colonial administration looking for inroads, intersections, and uptake -- The philosophy and political economy of individualizing native title through Crown grants---1856-1860 -- How to transform native title---indigenous communities as vectors of, and volunteers for, change -- The necessity for courts to investigate native title---`Negotiations and diplomatism will have no force, and no public support' -- State-building and experimentation---the Native Territorial Rights Bill and the `Exclusive use and occupancy of any lands' -- 'No well-defined law' to guide and 'Exclusive use and occupancy' -- Fashioning statutory windows of communicability between indigenous custom and English law -- `How to reconcile this work of civilization with the fair claims and rights of the natives is the problem which the Government has to solve' -- Conclusions -- 6. Exploring the Dynamics and Consequences of `Occasional Association' -- The metaphor and problem of `Occasional association' -- `Occasional negotiation' and the metaphor of `Occasional Association'---an extended essay in two parts -- pt. I The Native Council Bill of 1860---an exceptional experiment in legislative design and imperial constitutionalism -- Governing subjects as strangers and legislative design---double government, British South Asia, the Cape Colony, and New Zealand -- pt. II The Conditionality of the introduced colonial constitution---the revival and denouement of an imperial native council option -- `The incorporation of the two races in one body politic'---letters patent and an imperial native council: native title, administering native districts, and the levers of imperial military assistance and funding -- An imperial native council option confounded---the second cut -- Conclusions---a study in failure --

7. `Tribunals Independent of a Prince', 1859-1862---Exploring the Dynamics and Consequences of `Occasional Association', Part II -- `Whatever may be the true theory of native tenure'---of native title, mana, and seignorial rights -- Negotiations for the acquisition of the Pekapeka block in Waitara, 1859 and 1860 -- Warring memoranda---setting the scene -- Indigenous orders, the conditionality of the introduced colonial constitution, and the three sticks of law, the divine being, and the mana of New Zealand in disunion -- Constitutional reflections---living with indeterminacy and disagreement -- Communal or tribal rights, political autonomy, and rights of government as a parochial and trans-oceanic theme---the political constitutionalism of native title, New Zealand, Algeria, and the law of nations -- `It seems agreed that native title is marvellously complex' -- Casting Waitara as a constitutional moment---Martin's The Taranaki Question and a beginning to the warring of pamphlets -- `A country without law and a prince'---the Treaty as an usher for rights-talk; individual and collective rights -- Who interprets?---`Tribunals independent of the prince' and the meanings of the Treaty of Waitangi -- The Native Land Court, 1861-1862: a `Title Sifted Through' a statutory tribunal -- 8. Conclusions---Constitutional Design and the Treaty of Waitangi: Balanced Constitutions, Native Title, and the Normativity of Political Constitutionalism.

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