Background and Literature Review

According to Wolfe, settler colonies exist where outsiders invaded Indigenous homelands, founded “a new colonial society on the expropriated land base” (Reference Wolfe2006: 388) and now maintain that society indefinitely. In this manner, European settlers transformed the world, so that whole continents are now settler colonies. This transformation is especially evident, and is seen as archetypal, in the anglophone settler states, including Australia, Canada and the US.

Relatedly, Australia, Canada and the US are federal countries, comprising two types of federal units. The first are their familiar constituent units, the states/provinces. But all three federations also contain a second kind of unit, territories. Territories have a distinct jurisdictional structure and function. Structurally they are often described in terms of their deficiencies vis-à-vis states/provinces (Sabin, Reference Sabin2023). Territories are subjects of the central government rather than federal partners. Thus, they lack the sovereign, enshrined, uniform status and powers of states/provinces. They may be politically “unorganized,” without recognized local government, and so be ruled by martial law or by central-government bureaucrats. Or, if a territorial government has been established, its powers may be narrow, delegated and subject to veto or retraction. Moreover, territorial residents may lack rights enjoyed by residents of the states/provinces, such as birthright citizenship, full representation in the national legislature or a say in the selection of the head of state. And unlike states/provinces, territories are often not constitutionally entrenched but instead malleable and evolving. “Constitutive” questions, concerning the framing of the polity, may be open to alteration and contestation. Such questions include who belongs to, and who is excluded from, the territorial demos; how representation is apportioned; who can access, utilize or own land; whether land is owned collectively or severally; where the territorial borders lie; and whether the territory will be de-annexed, maintained as a territory or absorbed into the union as a state/province.

Functionally, meanwhile, territories are a means for the central government to directly control subnational areas (Sabin, Reference Sabin2023). Sometimes these areas are capital districts: interstitial gaps in the grid of states/provinces, serving as a neutral seat of power for the central government. More often, territories are established to oversee hinterlands—remote regions outside the grid of states/provinces. Often these are not just geographic hinterlands but ideational ones, seen at least initially as un- or other-inhabited. Underscoring this view are the names assigned to hinterland territories, often highlighting their far-flung location as viewed from the seat of the central government or the country’s urban core: for example, the Northern Territory of Australia, the Northwest Territories of Canada and the erstwhile Northwest Territory of the US.

In line with this description, territories are not unique to Australia, Canada and the US. For example, Malaysia, Nigeria and Pakistan have federal capital territories, while remnants of Britain’s empire are designated “overseas territories.” Such territories share not merely the above-described structural and functional features; they also serve a common purpose. For reasons that may be political, racial or economic, the central government assigned them territorial status to hold them while holding them apart. These territories are subjects distinct from the rest of the country, treated as subordinate and permanent outliers. In the Anglo-settler federations, too, some territories have been treated in this way. Examples include Australia’s capital territory, its Antarctic claims and its former colony of Papua New Guinea, and many of the US’s offshore, arm’s-length possessions, ranging from uninhabited but resource-rich islets to, formerly, the thronging Philippine archipelago.

But uniquely in Australia, Canada and the US, most territories, unlike the above examples, served a different purpose, facilitating the establishment of settler control. Instead of functioning as satellite possessions, these territories were “federal partners in waiting,” slated for ingestion. In this way, territories played an outsized, even revolutionary, role in Anglo-settler state-building. Territorihood was typically a transitional jurisdictional status, leading to statehood/provincehood. It was applied not just to hinterlands generally but to a specific, liminal, fungible sort of hinterland – “the frontier.” Turner, famously, called the US frontier the “meeting point between savagery and civilization” (Reference Turner2017 [1893]). Territories were an administrative mechanism to roll back that frontier, “civilizing” it. As such, they were a tool of re-constitution. By managing Indigenous subjugation (Owens, Reference Owens2012: 76), orderly white in-migration, land-surveying and land sales and the establishment of liberal–democratic home rule, territories were the jurisdictional form shepherding settler takeover. Once the frontier was re-constituted, territorihood ended and statehood/provincehood began; thus, settler colonialism was secured in place.

As mechanisms facilitating settler takeover, territories were the invention of Thomas Jefferson, who proposed them to occupy, democratize and federally absorb those US-held lands beyond the Thirteen Colonies (Immerwahr, Reference Immerwahr2019). The Northwest Ordinance of 1787 laid out a stepwise process by which territories would turn the “Western Lands” into states. Once Congress enacted and delimited a new territory, the jurisdiction would be assigned an appointed governor and panel of judges. When the territory’s population reached 5,000 “free male inhabitants”—that is to say, white settlers—it could establish a legislature and send one voting delegate to Congress (though legislative decisions were still subject to gubernatorial veto). Once the settler population reached 60,000, the territory could petition Congress for admission as a state.

In the early years of the US, territories were tightly controlled by federal officials, who demanded gradual, orderly, “compact” settlement, in part to avoid costly conflicts with Indigenous peoples (Eigen, Reference Eigen2010). Settlers often bristled at this top-down, go-slow approach, decrying their exclusion from territorial decision making. As the nineteenth century progressed, settlers’ demands prevailed. After 1848, new territories immediately achieved legislative powers. And whereas Indigenous peoples had at first been dealt with cautiously, often through nation-to-nation treaty-making with the federal government, dispossession turned more ad hoc, rapid, violent and chaotic (Blackhawk, Reference Blackhawk2023: 106), precipitating decades of “Indian wars.” According to Immerwahr, due to settlers’ explosive westward land-rush, the “great Jeffersonian system that had prevailed in the first decades, with western subjects semi-colonized, simply could not hold” (Reference Immerwahr2019: 34). The territories increasingly fell under the control of settlers themselves, who scrambled to gain Indigenous land by any means necessary.

In this manner, dozens of territories, encompassing most of the geographic expanse of the US, progressed toward statehood. “Only when the territory was deemed assimilated … would the Congress approve the petition for admission” (Blackhawk, Reference Blackhawk2023: 41). Some territories, such as Alabama, were converted into states in just a few years. Alaska, on the other hand, took nearly a century to be sufficiently settler controlled. All told, more than 30 US states began life as territories. Students of US history have commented extensively on the settler-colonizing function of territories, calling them “the official unit of American expansion” (Pomeroy, Reference Pomeroy1944: 40), a “particular system … to cast a republican superstructure across the North American continent” (Rogers, Reference Rogers2017: 22), “the guarantor of the perennial rebirth of the thirteen colonies” (Santiago, Reference Santiago2002: 32) and a “blueprint for empire” (Onuf, Reference Onuf2019: xix). The US did not hide the expansionist function of territories. Indeed, each time a territory earned statehood, a star was added to the US flag.

Elsewhere in the Anglo New World, territories similarly facilitated national expansion. Following the birth of Canada in 1867, some officials treated the sprawling Rupert’s Land and North-Western Territory as an inert possession (Eigen, Reference Eigen2010: 70), but others called for settlement. (Stated Canada’s first prime minister, John A. Macdonald, “I would be quite willing, personally, to leave that whole country a wilderness for the next half-century, but I fear if Englishmen do not go there, Yankees will” [Bovey, Reference Bovey1967: 12]). Hence, Indigenous peoples in the territories were pacified—through violence, including the war against the Métis and “clearing the plains” (Daschuk, Reference Daschuk2013), and through terms laid out in the 11 “numbered treaties,” which together covered most of the territories. Settlers moved westward, then pressed for home rule, carving out two whole new provinces, Alberta and Saskatchewan (Lingard, Reference Lingard1946; Thomas, Reference Thomas1956). In those provinces, the federal government initially retained control of public lands to better orchestrate their colonization (Hogg and Heerema, Reference Hogg, Heerema and Payne2007). Much of the rest of the territories was transferred to Manitoba, Ontario and Quebec. Given this history, Sabin likens Canada’s territories to those of the US: “living relics of North American imperialism” (2023).

Similar dynamics shaped Australia’s key hinterland territory, the Northern Territory. When the region was made a federal territory in 1911, Alfred Deakin, Australia’s second prime minister, proclaimed, “Either we must accomplish the peopling of the northern territory or submit to its transfer to some other nation” (Walker, Reference Walker1999: 122). But settlement was complicated by “the sustained Aboriginal struggle against European incursion” (Pedersen and Phillpot, Reference Pedersen, Phillpot and Russell-Smith2018: 41). Spearings of frontiersmen were common. Authorities responded with massacres well into the 1920s. For decades, the territory experienced “a bloody war” (Northern Territory Government, 1998: 9). Eventually, much of the far north and central desert was made into Indigenous reserves. Elsewhere, cattle stations took root, exploiting cheap Indigenous labour. The territory’s settlers bristled at federal “remote control” (Carment, Reference Carment2007: 4), so in 1948 Canberra permitted the establishment of a Northern Territory council. In 1978, over Indigenous protests, the territory was granted Westminster-style “responsible government” and many of the powers of a state.

Today, Australia, Canada and the US still possess territories. The US has more than a dozen, all offshore, five of which are substantially inhabited: Puerto Rico and the US Virgin Islands in the Caribbean and American Samoa, Guam and the Northern Marianas in the Pacific. Canada has three territories, all vast and far north: the Yukon, Northwest Territories and Nunavut. In Australia lies the similarly vast Northern Territory, plus the Australian Capital Territory and a number of mostly offshore territories that are uninhabited or nearly so.

These surviving territories have in recent years inspired significant scholarship. In political science and adjacent disciplines, that scholarship has focused on local—especially Indigenous—empowerment, and on federal resistance thereto. In Canada, studies have addressed the particularly intense push for Indigenous self-determination in the territories, including difficulties (and notable successes) regarding the settlement of northern land-claims and institutionalization of Indigenous governance (for example, Alcantara and Davidson, Reference Alcantara and Davidson2015; Hicks and White, Reference Hicks and White2015; Nadasdy, Reference Nadasdy2017; White, Reference White2020). In the US, research has focused on colonial indignities experienced by the remaining territories, including exclusion from full representation in Congress and the Electoral College, federal usurpation of territorial authority (for example, Cabán, Reference Cabán2018; Ficek, Reference Ficek2018) and racial and linguistic discrimination (for example, Barreto, Reference Barreto2016; Campbell, Reference Campbell2021). Finally, in Australia, recent research has especially addressed the federal government’s 2007 Northern Territory Intervention, in which Canberra unilaterally suspended elements of the Aboriginal Land Rights Act and diminished Indigenous self-determination (for example, Macoun, Reference Macoun2011; Morphy and Morphy, Reference Morphy and Morphy2013).

Less contemporary territorial research addresses the dynamic that long made Anglo-federal territories distinct: settlers’ quest for control. With the advent of the “rights revolution” half a century ago (Epp, Reference Epp1998), blunt settler force, including in the territories, has become more constrained.Footnote ¹ “Clearing the plains” in Canada, the “bloody war” in northern Australia and the “Indian Wars” in the US are now condemned, in part for being illiberal. Yet as a few scholars have demonstrated, the rise of rights did not stop settlers from pressing their interests in the territories. Studies show that especially in the 1970s and 1980s, settlers in Canada’s Yukon and Northwest Territories (Sabin, Reference Sabin2014) and Australia’s Northern Territory (Jull, Reference Jull1996) framed themselves as colonized subjects, competing with territorial Indigenous peoples to wrest power from federal authorities. In securing the establishment of Westminster-style “responsible” public governments, they succeeded. But, as will be shown in the next section, settlers failed at the time in blocking the settlement and institution of Indigenous land-claim and self-government agreements, as well as other Indigenous-governance protections, which impinge on settler power to this day.

This article shows that since the 1980s, settlers contested Indigenous authority in the territories in a new way, through rights-challenges. The resulting legal cases have received some attention from US law scholars, especially students of the “Law of the Territories” and the Supreme Court’s “Insular Cases Doctrine” (for example, Torres, Reference Torres2012; Mafnas, Reference Mafnas2015; Villazor, Reference Villazor2017; Erman, Reference Erman2021; Ponsa-Kraus, Reference Ponsa-Kraus2021). Less attention has been given to those cases by political scientists, including students of settler colonialism, who focus on the assertion and reification of settler power, and students of comparative federalism, who focus on the structure and function of federal units and systems. In Canada and Australia, meanwhile, relatively little attention has been paid to settler rights-challenges in the territories, even by legal scholars. Further, no scholarship has examined settler-rights challenges across the Anglo-settler federal territories, examining them as a transnational phenomenon or exploring them in the context of the historical, settler-colonizing role of territories. This article addresses those gaps, identifying settler-rights cases as consequential in Anglo-settler federal territories, and exploring why that may be.

The Territories as Sites of Indigenous Power

As shown, the remaining Anglo-settler federal territories differ from states/provinces in their institutional form and historic function. In this section I discuss two additional ways the remaining territories differ: they have large Indigenous populations, and relatedly, are frequently sites of enduring, or revitalized, Indigenous political power.

To appreciate how Indigenous demographics stand out in territories vis-à-vis states/provinces, first consider the latter. Australia, Canada and the US together encompass 66 states/provinces. All, just a few centuries ago, were home exclusively to Indigenous peoples. Yet in every US and Australian state and all but one Canadian province, Indigenous peoples were reduced to a minority by the time of admission to the union. (The exception is Manitoba, where Métis formed a majority at provincehood but were then immediately minoritized [Prefontaine, Reference Prefontaine2007].) Today the state/province with the highest proportion of Indigenous inhabitants is Alaska, at 20 per cent. Just a half-dozen states/provinces are more than 10 per cent Indigenous. In a vast majority of states/provinces, the Indigenous proportion is minimal, at under 2 per cent.

By comparison, of the 10 territories that are significantly inhabited, just 3 are minimally Indigenous (Puerto Rico, the US Virgin Islands and the Australian Capital Territory). Among the remaining seven territories, three are majority-Indigenous (American Samoa, 89 per cent; Nunavut, 86 per cent; and the Northwest Territories, 51 per cent) and four have a substantial Indigenous minority, exceeding that of any state/province (Guam, 37 per cent; the Northern Territory, 30 per cent; the Northern Marianas, 24 per cent; and the Yukon, 22 per cent). Moreover, in many of those seven territories, the settler population is only recently established: Guam, the Northern Marianas, the Northwest Territories and the Northern Territory were overwhelmingly Indigenous until at least the Second World War. As well, in many territories, settlers are transient. For example, in the Northern Territory, one-sixth of the settler population “turns over” every year. Thus, that territory’s Indigenous peoples have been called “permanent residents among a sea of transient[s]” (Jull, Reference Jull1996: 2), a description that equally applies to Canada’s territories. In addition, in the Northern Territory and Canada’s territories, settlers are almost exclusively concentrated in the capital city; Indigenous peoples predominate almost everywhere else. It can generally be said that in the entire Anglophone New World, the territories are the last remaining outposts of Indigenous demographic predominance.

Given those demographics, and their physical distance from colonial centres, it is no surprise Indigenous peoples of the territories have retained cultural sovereignty longer and more strongly. Until the Second World War, parts of Canada’s Arctic remained unmapped by white people, and even today barely any of it is road accessible. Some Inuit remained beyond the reach of the state into the 1950s and were not “sedentarized” into permanent communities until the 1970s (Degen et al., Reference Degen, Dana and Degen2024). In Australia’s north, one Indigenous family remained “uncontacted” until 1984 (Kinsela, Reference Kinsela2014), and even today much of the Indigenous population lives “out bush,” in encampments remote and often purposely aloof from the settler state (Northern Territory Government, 2019). In part because of this, territories are where Indigenous languages and cultures remain most intact. For example, as compared with states/provinces, in almost all territories an outsized proportion of Indigenous residents speak an Indigenous language and/or engage in traditional lifeways, for example, securing food through land-based practices such as hunting and fishing.

Given all this, it should be unsurprising that Indigenous peoples in the territories also maintain a sharp sense of political distinctiveness. They seek to express and protect this distinctiveness through their government institutions and processes, which are more powerful than those of Indigenous peoples in the states/provinces. Take Australia’s Northern Territory: in 1966 Gurindji stockmen, fed up with feudal working conditions, walked off the Wave Hill cattle station and demanded their traditional lands back. Meanwhile, the Yolngu of the Gove Peninsula, opposing establishment of a bauxite mine, issued the Bark Petition, a landmark native-title challenge. Chastened, Australia’s federal government pledged support for nationwide Indigenous land reform. However, facing opposition from the settler-controlled states, the federal government commenced reform in the only major jurisdiction under its direct authority, the Northern Territory. The 1976 Aboriginal Land Rights Act gave Indigenous peoples inalienable title to 19 per cent of the territory and opened far more to land claims (Gibbins, Reference Gibbins1988). Within a few decades, half the territory was Indigenous owned, with a permit system regulating settler access. Established as well were the Northern and Central Land Councils, “para-governmental bodies” answerable to Indigenous voters (Heatley, Reference Heatley and Pons2002). The councils became politically powerful, providing glimmerings of self-determination. Together these reforms placed Indigenous peoples in the territory in a uniquely strong position relative to their brethren elsewhere in Australia (Carment, Reference Carment2007). The territorial public government, albeit settler dominated, has little power to resist: unlike state governments, it lacks authority over Indigenous land rights and certain types of mining. Moreover, decisions of the Northern Territory legislature can be, and in one instance have been, overruled by the federal government. Indigenous empowerment is in part why the Northern Territory has been deemed “the least successfully colonized political unit in Australia” (Carment, Reference Carment2007: 53).

Similar circumstances prevail across the 4 million square kilometers of territorial Canada. In 1973, Yukon First Nations filed Canada’s first modern land-claim. Soon the Inuit, Inuvialuit, Métis and Dene of the Northwest Territories also filed claims; the Dene moreover boycotted that territory’s public government, deeming it colonial and illegitimate. Anglo governance was thrown into uncertainty: observed Dacks, “of all jurisdictions in Canada, only in the [territories] does the question still remain open as to which political philosophy—liberalism based on the individual, nationalism based on ethnic identity, or consociationalism which attempts to integrate the two—will ultimately guide the political process” (Reference Dacks1986: 354). Over the next few decades the settlement of land claims produced constitutionally enshrined “modern treaties,” transforming northern governance. The Inuit of the Eastern Arctic are now the world’s largest private landowners, and govern a purpose-built territory, Nunavut, meaning “our land.” In line with the traditional values of Inuit qaujimajatuqangit, Nunavut’s government is geographically decentralized and its legislature is non-partisan and “consensus based” (Hicks and White, Reference Hicks and White2015). Also “consensus based” is the government of the rump Northwest Territories, home to 11 official languages, 9 of them Indigenous (Alcantara, Reference Alcantara2013b). Numerous Indigenous nations in the Northwest Territories and Yukon now own large swaths of land and exercise “self-government.” And, in all three territories, Indigenous peoples have achieved a formidable role in land-and-resource management, including disproportionate representation on so-called co-management boards (White, Reference White2020). All of this differs dramatically from the situation in Canada’s provinces, where only a handful of “modern treaties” have been signed (Land Claims Agreements Coalition, 2025), leaving Indigenous land-title largely unacknowledged and most Indigenous peoples still wards under the federal Indian Act.

The US Pacific territories are also sites of Indigenous group-differentiated rights and governance institutions. Most notable is American Samoa, where the traditional principles of fa‘a Samoa are integrated into government. To guard Samoan self-determination, inhabitants are not US citizens but “US nationals.” Representation in the territorial senate is limited to members of the island’s matai nobility and is determined not through popular vote but customary selection. Americans from outside the territory cannot visit or take up residence without territorial-government permission. Almost all lands are communally owned (Tapu, Reference Tapu2020) and cannot be purchased by non-Samoans (Ponsa-Kraus, Reference Ponsa-Kraus2021). Another US territory, the Northern Mariana Islands, has similarly sought to prevent land alienation by allowing land purchases only by those of “Northern Marianas descent.” In Guam there were, until recently, more modest land-alienation restrictions: the Chamorro Land Trust Act permitted the lease of trust lands, which cover one-fifth of the island, only to “native Chamorros” (Villazor, Reference Villazor2017). Guam, as well as American Samoa, is on the United Nations’ list of “non-self-governing territories” and may one day hold a plebiscite on independence.

Settler Rights-Challenges in the Territories

As shown above, the remaining Anglo-settler federal territories are home to substantial Indigenous populations wielding significant powers. Yet as I will show, the territories are also sites where settlers in recent times challenged Indigenous powers, including by asserting liberal rights.

Of course historically in the Anglo-settler federations, settlers extended power through various “tools of elimination” (Wolfe, Reference Wolfe2006). Most controversial, even at the time, were exterminations and expulsions (for example, Hoig, Reference Hoig2013; Saunt, Reference Saunt2020). Other tools included strategic treaty-making and treaty-breaking, gathering of Indigenous peoples onto reservations, and forced removal and assimilation of Indigenous children through residential schooling and adoption (for example, Calloway, Reference Calloway2013; Frantz, Reference Frantz1999; Milloy, Reference Milloy1999). These practices were sometimes justified using liberal–democratic rhetoric. Eisenberg shows that in Canada, settlers championed “liberalization” to promote “the collective cultural dominance of the majority” (Reference Eisenberg, Strong-Boag, Grace, Anderson and Eisenberg1998: 39). Likewise, Hoxie displays how talk of “freedom” and “equality” served US Indian policy (1984). Tribal termination (Wilkinson and Biggs, Reference Wilkinson and Biggs1977: 156) and the imposition of US citizenship (Porter, Reference Porter1999) were said to grant Native Americans equality vis-à-vis other Americans. The most notorious allotment policy, the Dawes Act, was “the Indians’ Magna Carta,” liberating them from collective land ownership (Hoxie, Reference Hoxie1984: 70). Canada’s 1969 White Paper, proposing to dissolve reserves, dismantle treaties and annul Indigenous group-differentiated status, would “enable the Indian people to be free—free to develop Indian cultures in an environment of legal, social and economic equality with other Canadians” (Chrétien, Reference Chrétien1969).

Today, in part due to the “rights revolution,” overt settler violence and authoritarianism are less acceptable. Yet arguably, in closing one door, the rights revolution opened another, empowering settlers to not merely engage in liberal rhetoric but to enact rights-based laws and challenge alleged settler-rights violations in court. By promulgating “colour blind” legislation and enjoining judges to strike down Indigenous protections said to treat settlers unjustly, settlers have used liberal–democratic rights to undermine Indigenous protections. This practice has been given various names, including the “settler-rights backlash” (for example: Goldberg, Reference Goldberg1998; Grossman, Reference Grossman and Perry2003; Johansen, Reference Johansen and Johansen2004; Rÿser, Reference Rÿser1992; O’Malley and Kidman, Reference O’Malley and Kidman2018; Spitzer, Reference Spitzer2024). For example, Goldberg observes that settler-rights activists demand “‘equality’, ‘democracy’ and ‘civil rights’ while accusing Indigenous-rights actors of ‘apartheid’ and ‘ethnic cleansing’” (Goldberg, Reference Goldberg1998: 6). Law scholars such as Berger (Reference Berger2010, Reference Berger2013, Reference Berger2019), Gover (Reference Gover2014, Reference Gover2015) and McHugh (Reference McHugh2004, Reference McHugh2008) have discussed how Indigenous powers, hinging as they do on collectivism, exclusion and group difference, are vulnerable to settler nondiscrimination challenges. Blackhawk found the same, hence stating “rights are feared in Indian Country rather than sought” (Reference Blackhawk2019: 1796).

As captured in the examples below, a variety of settler-rights challenges have occurred since the 1980s in Anglo-settler federal territories, with potentially significant impacts on the constitutional future of those territories.

Analysis and Conclusions

As shown, settlers have long invoked liberal principles to justify Indigenous disempowerment. Moreover, in recent decades their invocations expanded from rhetoric to legislation and litigation. With the “settler-rights backlash” they now enact and sue for liberal–democratic rights, doing so to challenge Indigenous-governance protections – which, hinging on collectivism, exclusion and group difference, are impugned as illiberal. Such challenges have occurred in the federal territories of Australia, Canada and the US, with potentially significant consequences. For example, as detailed above, challenges in the territories target Indigenous protections concerning who is included in the territorial demos, when residents qualify to participate in that demos, how legislative representation is apportioned, who can own or access land, and who makes land-management decisions. If such challenges succeed, they may “re-constitute” territories, facilitating settler control.

Having found that settler-rights challenges occur, and may be of great consequence, in territories, I now explore six potential reasons why. I make no conclusions about these possible causal factors, but merely propose them as subjects for further research.

The first possible factor is that territories have always been ripe for settler-versus-Indigenous conflict. After all, historically, that is what territories were for. Territorial status was assigned to places targeted for—and was assigned to oversee—settler takeover. Territories were by nature the only organized Anglo-settler jurisdictions where Indigenous peoples retained some measure of power. That is still true in today’s territories. In places such as American Samoa, Australia’s Northern Territory and Canada’s Yukon, Indigenous peoples still form demographic majorities or substantial minorities and to a significant degree remain linguistically and culturally intact. Alert to their political vulnerability, they possess both the numbers and motivation to protect their interests through Indigenous governance. In contrast, territories have also always been – and today remain – where settlers are fewer, newer and less politically secure. Under such conditions, settlers’ motives for challenging Indigenous power need not be malicious. Individual settlers may simply seek the protection of settler-state laws and norms. Yet whatever their motives, their actions are part of a pattern: for more than two centuries, settlers have arrived on the “frontier” and pressed their interests in a manner almost invariably facilitating domination.

A second factor I suggest may explain the outsized significance of settler-rights challenges in the territories is, of course, the advent of the “rights revolution.” As discussed earlier, the rights revolution sanctified and politicized rights, on one hand rendering blunt force less acceptable while on the other amplifying the effectiveness of settler rights-challenges, making them especially useful for contesting Indigenous power. For example, prior to Canada’s adoption of the Charter of Rights and Freedoms in 1982, settlers enjoyed no enshrined right to “effective representation” – the right they subsequently invoked to successfully challenge Indigenous overrepresentation in the Northwest Territories in the aforementioned Friends of Democracy case. It is thus logical that settler rights-challenges became more common in the few territories that survived into this present, rights-focused era.

But the incidence of settler-rights challenges in today’s territories may also relate to a third factor: the distinctly public nature of territorial Indigenous governance. Such governance is an easy target for attack. Elsewhere in the Anglo-settler federations, particularly in the US states and Canadian provinces, Indigenous governance is largely siloed within Indigenous-specific bodies of law (US federal Indian Law and Canada’s Indian Act), which officially recognize Indigenous-specific polities (tribes, bands) and individuals (enrolled tribal members, “status Indians”) and/or apply in Indigenous-designated jurisdictions (reservations, reserves). Settlers are often only indirectly subject to these siloed laws, giving them less occasion to feel aggrieved and launch rights-challenges. Moreover, where settlers nevertheless launched rights-challenges contesting these Indigenous-specific laws, their challenges were not infrequently rejected, including on the grounds that for certain purposes, officially recognized Indigenous collectives are a constitutionally protected political class distinct from the general settler-state public (for example, Berger, Reference Berger2010, Reference Berger2019).

In the territories, by contrast, Indigenous-governance mechanisms frequently find expression not through siloed Indigenous-specific laws but through regular public government—through the structure of the Senate of American Samoa, for example, or through the composition of environmental co-management bodies in the Yukon, or through the enrollment of voters in Guam’s Decolonization Registry. These public laws, institutions and processes govern all residents of the territories irrespective of whether they are Indigenous or settler. This public quality of Indigenous governance is in part due to the simple fact that, where Indigenous peoples are the majority, for example in American Samoa, then public governance unsurprisingly reflects Indigenous traditions and interests. But it is also because certain Indigenous-specific federal laws that apply in the states/provinces have been purposely denied to the territories. In the US, the federal government declined to extend Indian Law to the territories (Arnett, Reference Arnett2018), refusing to recognize territorial Indigenous polities as “tribes,” Indigenous individuals as “tribal members” or Indigenous lands as “reservations,” thus denying them protected political status. Somewhat similarly, Canada never placed Inuit, who are especially numerous in the territories, under the Indian Act, created almost no reserves in the Yukon, Northwest Territories and Nunavut and unlike in the provinces, assigned financial and administrative responsibility for Indigenous programs not to the federal Department of Indian Affairs but to the public territorial governments (Coates, Reference Coates1985). Perhaps because territorial Indigenous peoples were left with few alternatives, they sought to protect their interests in part through public-governance mechanisms. Because such mechanisms exhibit Indigenous preference, they are susceptible to settler-rights challenges, which impugn them for favoring Indigenous members of the territorial public over settler members.

A fourth factor potentially explaining the significance of rights-clashes in the territories is that, if territorial Indigenous-governance protections are, due to their public nature, susceptible to settler rights-challenges, they are conversely—at least for now, in some instances, somewhat precariously—also distinctly shielded. Settler-rights challenges in the territories in some instances probed for weakness in, and thereby sought to puncture, those shields. The most obvious example is in the US territories, where the Supreme Court’s imperialist “Insular Cases” doctrine has in recent decades been repurposed to shield certain Indigenous-governance protections from rights-based attacks (Rennie, Reference Rennie2017). Under the Insular Cases, protections that would elsewhere be unconstitutional were found permissible in the unique cultural context of the territories, where striking them down would be “impracticable and anomalous.” It was precisely this standard that the court applied in the above-mentioned Wabol decision, upholding land-alienation restrictions that protect Chamorros in the Northern Mariana Islands. But the Insular Cases doctrine is on shaky ground. Due to its imperialist roots, the US Department of Justice condemned the doctrine in 2024 and US courts are under pressure to repudiate it (US Department of Justice, 2024). Certainly, courts have become wary of invoking the Insular Cases. While in the follow-up case to Wabol, the aforementioned Davis v. Commonwealth, the courts could have chosen to again cite the Insular Cases to defend land-alienation restrictions in the Northern Marianas, they declined to do so. In effect, the “shield” proffered by the Insular Cases in Wabol was not made available two decades later in Davis v. Commonwealth.

Meanwhile, in Canadian and Australian territories, Indigenous governance may also be distinctly but precariously shielded. The settlement of land claims, for example, has been especially feasible in the Australian and Canadian territories, in part because the territories are, uniquely, federal subjects (Alcantara, Reference Alcantara2013a). In Australia, at least, the shielding of these land-claims settlements may hinge on the preservation of federal subjecthood—which is why settlers in Australia’s Northern Territory denounced federal subjecthood and instead sought statehood. In Canada, however, land-claims settlements may be less vulnerable to reversal. Such settlements, as well as other Indigenous-governance protections, are sometimes shielded by Indigenous-rights provisions entrenched in Canada’s constitution (Section 35) and Charter (Section 25). Settler-rights challenges probed for weaknesses in these shields. They failed to find such weaknesses in the aforementioned Na-cho Nyäk Dun case, but succeeded in Friends of Democracy, where they proved that Indigenous overrepresentation in the Northwest Territories legislature is not a Section 35 right.

Settler-rights challenges in the territories may be especially impactful for a fifth reason. For decades, federal governments have gradually handed over powers to many of the remaining territories, ushering them toward jurisdictional maturity. This process is called “devolution” (Alcantara et al., Reference Alcantara, Cameron and Kennedy2012). Settler-rights claims have the ability, and some urgency, to shape devolution. As noted, all the remaining territories are for now wards of their respective federal governments. Hence officials in Canberra, Ottawa and Washington D.C. can legally quash acts of the territorial legislatures (which, as noted, has occurred in Australia’s Northern Territory), seize control of their finances (as the US did recently with Puerto Rico), unilaterally impose US citizenship on their residents (as some suggest could happen with American Samoa), redraw their borders (as happened repeatedly with Canada’s Northwest Territories), de-annex them (as with the former US territory of the Philippines) or absorb them (as occurred with almost all former US territories). But also, and especially importantly, the federal government can cede powers to the territories, devolving to them some arrangement of greater authority. For decades this has been the trend in all three Anglo-settler federations—a trend which, while not irreversible, has been largely unidirectional. As territorial settlers are aware, the particular arrangement of authority that is devolved to the territories will benefit some territorial groups more than others, in a manner that will be difficult to undo (Sabin, Reference Sabin2014). This gives settlers immediate incentive to shape devolution, including by appealing to settler rights. Settler-rights challenges may seek simply to moderate federal devolution decisions, as occurred when settlers in the aforementioned Allman case sought a say in determining the boundaries of the proposed Nunavut territory. Even more impactfully, settler-rights challenges may seek to quash federal devolution decisions—as, for example, occurred in Friends of Democracy, which obviated the federal proposal to accord Indigenous peoples “specific guarantees” of representation in the Northwest Territories legislature.

There is one related, sixth reason why I suggest settler-rights challenges in territories have such gravity. Unlike states/provinces, which are fully, clearly and fixedly constituted, in territories the structures and principles that frame the polity are protean—they are for now ill-defined, unstable, malleable and manipulable. Settler-rights challenges in the territories are therefore especially high-stakes: They are, as I have argued, “constitutive contests.” In such contests, settlers strive to re-constitute the territory to their advantage. Where in states/provinces the existence of a fixed constitution limits the opportunity for, and consequences of, rights-challenges, in territories such challenges frequently problematize the fundamental framing of the polity—who can travel or reside there; who comprises the electorate; how decision-making power is apportioned; who can own, use and access the land and natural resources; where the borders lie; and indeed, whether the jurisdiction can break away completely, achieving independence from the settler state. In short, settler-rights challenges in the territories may re-shape the bounds and ground-laws that define the polity in the first place. Hence, territories are not merely sites but subjects of rights-challenges, with the re-constitution of the jurisdiction hanging in the balance.