The High Court of Australia ruled Tuesday that Aboriginal Australians cannot be deported even if they do not hold Australian citizenship.

In a 4-3 decision the court stated that “Aboriginal Australians … are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution.”

The case surrounded two Aboriginal men born overseas who were ordered to be deported from Australia because they each had a criminal conviction. The plaintiffs argued that while the two men are not citizens, because they are Aboriginal Australians, they cannot be aliens. The plaintiffs contend that the Australian common law recognizes a unique connection which Aboriginal people have with land and waters in Australia, and because “that connection is so strong … Aboriginal persons belong to the land.” This argument creates a new category of person described as “non-citizen non-aliens.”

The court stated that the constitutional term “aliens” conveys otherness, being an “outsider” or foreignness. The constitutional term “aliens” does not apply to Aboriginal Australians, the original inhabitants of the country, as an Aboriginal Australian is not an “outsider” to Australia. “Failure to recognize that Aboriginal Australians retain their connection with land and waters would distort the concept of alienage by ignoring the content, nature and depth of that connection. It would fail to recognize the first peoples of this country.”

Indigenous Australians have lived on the continent for over 50,000 years and make up 3 percent of the population.