Aboriginal women’s laws and lives
How might we keep growing the law?1
The anger is so great because this is not in Aboriginal culture. You know, even 20 years ago, 22 years ago, had an Aboriginal person done that, he’d have been killed. Had he raped a child, he’d have been killed…. In Aboriginal law, in Aboriginal custom, culture, we don’t go dobbing people in because they know what they’ve done and they’re supposed to, under real Aboriginal, true Aboriginal law, they admit they’ve done it. And, they’re getting away of (sic) it because of this not guilty until proven guilty. What a lot of nonsense! … Get the grandmothers to start standing up. We’ve got what we used to call Grandmother’s Law, or Grandmother’s Ways, Grannie’s Ways, and that’s not working anymore. And the Grannies have got to stand up and the men have to remember that the Grannies, the women’s, stories are stronger than the men’s. And the women are just getting as stupid and drunk as the men are. And the women had better get up off their backsides and do something because the women are the backbone of any society, whether it’s black or white it doesn’t matter. And the women are going to have to get up and save the kids and the whole society and the social structure and this is the only way to do it.3
This chapter is a tribute to the strength of Aboriginal women of Australia and also a dedication to my great-grandmother Amy Gibson: the elderly tiny Aboriginal woman of the Tanganekald and Meintangk peoples who was feared by drinking men. Granny Amy stood strong with her fighting stick against those who dared to abandon their families for the grog, but, more than the force of the strike from her fighting stick, the men feared her position as a strong law woman: that is what they revered the most. In this chapter, I want to look at how the grannies have continued to stand strong in the face of an oppressive colonial violence and discuss the challenges that are faced by women. One of those challenges is to discuss how Aboriginal men might remember the strength of stories of women, so that communities raise children in safety, away from the violence and trauma that has taken hold not only of the Aboriginal world, but also of most spaces now inhabited by humanity.
In this chapter, I will review the question of Aboriginal women’s laws and their intersection with Anglo-Australian laws and contemporary patterns of violence. While this chapter looks at what has been said over and over again in the past,4 I am hoping that in going over old ground we can come to focus more on old ways of looking at the problem of violence against women and use this focus to re-establish possibilities for the law of the grannies to continue to be told and relived over and over into the future. Our grandmother’s laws are a continuing strategy for providing a safe and healthy environment for women and children, in the same way as our women’s laws did when women were sovereign in this land.
Feminist conversations have ranged across universalising positions of women and applying international human rights standards as a solution to the violence many women endure. In this universalised order, whose concepts of equality will apply? And is there a will on the part of government to supply what is deemed equal: equal housing, health, education for example? Or are all of the aspirations of white women even desired by Aboriginal women? How do we provide equal protection to Aboriginal women and children against a popularly perceived black misogyny5 when white misogyny exists in non-Aboriginal communities? What can be expected from the notion of equal protection when we see violence against and rape of white women and children occurring in mainstream communities? In the limited space I have here, I will attempt to look briefly at the lives of women living under one law for all, discussing its white, colonising, patriarchal character and the challenges it throws up for the laws of the grandmothers confronted by the federal government’s current call for the extinguishment of Aboriginal laws.6 The usual difficulties that arise when set the task of writing are compounded by assimilating contemporary misrepresentations on the violence against Aboriginal women and children, misrepresentations that have led to a broad and misleading debate that has once again left the public with the impression that violence against women is inherent in Aboriginal culture.7 I will argue that the violence we are currently observing in Aboriginal communities can be sourced in the invasion and colonisation of Australia. That is perhaps stating the obvious, but it is a position that has been strongly rejected and criticised.8 I will deal with some of those criticisms that are particularly relevant to this chapter. The obvious has also been stated before, by ancestors and other critical theorists: violence is inherent in the colonial project. To view the contemporary crisis in Aboriginal communities without reference to the violent colonial history of this country is to look too simply at a complex and layered landscape.
Laws of women
It is not my intention to give a description of past, or even present, manifestations of women’s laws because there are not one, but many Aboriginal laws and Aboriginal laws of women who live in the Australian landscape and its peoples. There are too many to describe and, anyway, it is not appropriate for me to do what is a task belonging to the law holders or the women who carry their laws, to speak of their knowledge and their ways on their own behalf. I cannot speak for others, or universalise their story or their relationships to law, country and kin, but I can speak of my own grandmothers and their status as law women. To assume the role of speaking for all Aboriginal women and our laws would itself be a breach of our law. I can say that our grandmothers held the law and that they carried and passed onto future generations what they could within a rapidly changing colonised space.
In this chapter, I want to examine present and future possibilities for the autonomy of Aboriginal women, while also reviewing the extent to which Australian colonial law enables/disables that possibility. The question then emerges: what law am I talking about, Australian and or Aboriginal law?9 In responding to that question, we should look at how the two bodies of law speak or don’t speak to each other,10 at how the body of Aboriginal women has been brought into Australian law, and at what happens to Aboriginal law or the laws of the grandmothers in that process of embodiment.11 I don’t have the space here to give a fuller survey of how the courts have read Aboriginal law and women into the dominant legal narrative,12 but it seems clear that the courts’ reading of Aboriginal women’s law is given less recognition than is accorded the laws of Aboriginal men. What do we conclude from this? I would suggest that it illustrates the male dominance in the Australian legal profession, a dominance that works to reinforce stereotypes of a male-dominated Aboriginal society in which women are invisible in their lawfulness.13 Similar arguments have been made many times in colonial encounters throughout the world, where the position of Aboriginal women is decentred as a result of the colonising mission, with the consequence that ‘… male-centred and inept interpretation(s) of Native American women’s lives’14 ultimately take(s) over.
My current research focus looks at the interface between Aboriginal law and colonialism, and attempts to develop a decolonising text, which re-inscribes a women’s law space, a space where violence against women can be sorted and reordered. However, the critical question is: can that space re-emerge when the imposed Australian legal system has taken up all of the space? What space could be accorded to Aboriginal women’s law? Perhaps space is not the only thing required but so is will: does the will exist for a male-dominant political legal system to let go, to release its hold on power over law – can it ever happen? I think these questions are central to any discussion about creating space for Aboriginal law, and women’s law in particular, to continue to function and grow in Aboriginal communities.
Looking from a universalist positioning of women, Catharine MacKinnon15 takes us back to a question Simone De Beauvoir once asked; ‘Why is it that women do not dispute male sovereignty?’ For Aboriginal women, the sovereignty of women’s law was known and recognised by men: the grandmother’s law held a sovereign position. The colonisation of Australia displaced the sovereignty of both men’s and women’s laws. MacKinnon takes De Beauvoir’s question to be universal in its application, but I argue that De Beauvoir could not have known of the position of Australian Aboriginal women and perhaps her question should have been limited to a Western political legal landscape, or even to herself. The above quote by Aboriginal Elder Betty Pierce shows that for her, the grandmother’s law or the laws of Aboriginal women, have a central place in our lives, not only in the past, but also still today. They have a place in bringing lawfulness to the current situation of endemic violence against women and young children across Australia, more than ever before. However, while the application of the grandmother’s law is known to Aboriginal people, it has been mostly invisible to the dominant culture. Thus it has been difficult for the grandmother’s law to re-establish its lawful place in the midst of a dominant culture that has no concept of Aboriginal women’s laws. The dominant culture administers and polices itself entirely within a patriarchal horizon. The problem is not so much what we as Aboriginal communities need to do, but rather the work the dominant culture needs to do in shifting the maledominant nature of its own legal system, a system that denies the presence and place of women’s law. While I am not denying the work already done by feminist theorists and activists in this area to unmask the dominant patriarchal nature of Western legal systems, what has not been recognised is the different nature of Western legal systems from other systems of law and governance. For example, Aboriginal law does not fit within the adversarial model, but rather focuses on restoring harmonious relationships amongst individuals and community members. To universalise the notion of the dominant colonial legal system is to miss the opportunity to engage with Aboriginal legal systems. As Elder Betty Pierce states:
We’ve got what we used to call Grandmother’s Law, or Grandmother’s Ways, Grannie’s Ways, and that’s not working anymore. And the Grannies have got to stand up and the men have to remember that the Grannies, the women’s stories are stronger than the men’s.16
With the whitewashing or the making invisible of women’s law came the transferred Western values, which left Aboriginal women little opportunity to represent their law stories, or hold in place our own meanings and functions of the law.17 Now we hear more about the laws of men and in particular those laws that are repugnant, for example, those that mandate old men marrying young women, or those of the payback system.18 It is these features of Aboriginal law of which the public is made most aware. Laws relating to the obligation to care for country and family, ecological sustainability, and the ethics of sharing and caring and their deeper philosophy remain largely unknown to the public. It is this unbalanced representation of Aboriginal law that has potential to lead to its demonisation.19 The public knows very little of the complexities of Aboriginal law, perceiving it as being responsible for violence against women and children.20 Aboriginal women are portrayed as victims in need of rescue from violent black males. Here, I want to make it clear that I am not in denial of the contemporary position of Aboriginal women and children that is critical in many communities. What I am suggesting is that the actions of individuals who are physically and sexually abusive towards women have been blown up and taken as representative of a culturally approved norm, to the effect that Aboriginal law allows for violence against women.21 But the blowtorch gaze of the dominant culture and its media is never turned back on Western civilisation and its laws, which fail to protect women from male violence. Its legal system also allows for the violation and destruction of our natural environment, and we are witnessing global warming, desertification, pollution of waterways and other natural disasters, all of which are linked to inability of the ‘civilised legal systems’ to utilise its laws to better manage the looming environmental crisis.22 In contrast, the ways of Aboriginal law promote sustainability of both peoples and the environment. I think we need to engage more positively with Aboriginal laws and move away from the simplistic and racist demonisation of the first laws of Australia, to argue that the greater body of Aboriginal laws, which is a balance of women’s, country and men’s law, has a legitimate place as it always has. But there are some who wouldn’t agree. Anthropologist Peter Sutton has suggested traditional controls worked in the hunter–gatherer past, but are no longer functional where communities are tied to the permanency of resources, and that ‘rape and child abuse, have to be tackled head on and dealt with’.23 In Sutton’s work, there is the suggestion that rape is a part of Aboriginal culture and law;24 Sutton has misrepresented Aboriginal law as legitimising rape and child abuse, and has failed to understand a more complex picture, one in which the effects of colonialism and race have been excluded.
Sutton’s analysis abstracts culture from the overall power relations between Aboriginal peoples and the dominant culture and, in its abstraction, is flawed as an explanation for the high levels of violence in Aboriginal communities. The women he portrays are victims whose lives would be better off once absorbed by the civilising mission.25
The real picture is more complex. The savagery and violence of colonialism is missing from Sutton’s analysis. The narrative we don’t hear from Sutton is that of the rapes by the civilising mission men, and we don’t hear of the inter-generational trauma suffered as a result of those rapes. The history of rape and the violent colonial frontier is given almost no context in the contemporary analysis of violence in Aboriginal communities, even though the evidence of a violent colonial history is well known to us. We hear of it in our oral histories and some of those stories have also survived in the records of early colonialists. Katrina Schlunke26 invokes the historical writings of the missionary Threlkeld,27 who writes about the rape of young Aboriginal children in the aftermath of a violent massacre by the same white settler who perpetrated the Myall Creek massacre of 1838:
After killing the majority of the bark gathering party, the men, to quote the missionary Threlkeld, reserved two little girls who were ‘dreadfully injured’. Elsewhere he describes what was done to them as ‘inhumanly cut for lascivious purposes’ and elsewhere again ‘because they were too small for them they cut them with knives.’ These two girls, ‘about seven years old’ were then given as wives to two young Aboriginal men who were with the party, Davey and Billy. The two girls stayed with Davey and Billy, for months later Threlkeld’s son sees with his own eyes the ‘miserable plight’ of the girls. It is from Davey that we learn of the second incident, although there had been rumours. This was the final murder carried out by the group in this place. Threlkeld again: ‘The last that was murdered, was an elderly women whose throat they cut as she stood, and then let her run away, that the blood spurted out, and when she fell they took her up while yet alive and cast her into the triangular log fire, and her infant child they threw alive without any previous injury into the flames’.28