The end of ‘big men’ politics
From Griffith REVIEW Edition 22: MoneySexPower
© Copyright Griffith University & the author.
Written by Marcia Langton
IN THE FORTY YEARS SINCE the 1967 referendum, it has gradually become acceptable to ignore the large body of scientific and humanist evidence about the nature of Aboriginal societies. Anthropologists have been treated as the enemy, ‘handmaidens of imperialism', by Aboriginal radicals in the south who learnt this language in the leftist student meetings on campuses where other undergraduate nonsense was bandied around by the new radicals. Anthropologists continued to work in the north where, in the late 1960s and 1970s, their knowledge was essential for the conduct of the land rights claims then being heard by special commissions. In other areas of Indigenous affairs, their influence in public policy waned dramatically with the rise of quasi-libertarian thought and ‘cultural studies' in the late 1980s and '90s. Anthropologists' standing as impartial observers were ignored in public debates, even though they had accumulated the data that would be relied on in land and native title claims, in court cases involving matters of customary law, in criminal and civil cases where sentencing issues and customary punishments collided and raised as problems of double jeopardy. Only when the salacious details of women's ritual business and customary punishments attracted media attention were their views sought. In this vacuum, the tired old opponents of cultural relativism, including Ron Brunton and Roger Sandall, hawked their ugly tracts on a confused public. These men argue that Western middle-class people have idealised Indigenous cultures to fill a spiritual vacuum created by the collapse of Christianity. They also argue that tribal cultures are undemocratic, barbaric and the opposite of ideals such as democracy, freedom of speech, transparent and rational governance.
An older generation of Australian anthropologists wrote the ‘thick descriptions' of Aboriginal disputes and dispute processing, peace-making rituals and the practice of customary laws that still inform debates about Aboriginal custom and tradition in various areas of government policy and law. Their rich, detailed ethnographies revealed Aboriginal societies that were at least as prone to ritualised and random aggressive behaviour as they were to peace-making and dispute resolution. W.E.H. Stanner, for instance, noted in his 1968 ABC Boyer Lecture: ‘I was an eye-witness of many fights in which more than a hundred men came to an appointed field. There would be a warming up period given over to threat-signals and other ritualized gestures of hostility but once the true fighting started it might go on fiercely for hours ... Their lives certainly had a full share of conflict, of violent affrays between individuals, and of collective blood-letting. But in some ways they were more skilful than we are in limiting the free play of man's combative propensity.'
Stanner's work influenced other anthropologists in the field: the late Les Hiatt, Nancy Williams and others carried out fieldwork among Aboriginal groups whose legal systems were largely intact, although not uninfluenced by the expanding regime of ‘assimilation'. Hiatt provided a systematic analysis of disputes over acquisition of wives, orthodox and non-orthodox marriages, politics of bestowal case histories of marriages, disputes over property, adultery, insult and injury, sickness and non-violent death, and violent death.
Williams arrived in northeast Arnhem Land in the late 1960s, and her research focused specifically on how the Yolngu managed disputes in the context of the mission settlement at Yirrkala. Her monograph Two Laws (AIAS, 1987) described the Yolngu perceptions of Australian law and its relationship with traditional law. The maintenance of law and order at Yirrkala was achieved through mechanisms of dispute settlement based in clan politics and basic structure. Grievances were aired in a formal ritual and the relationship between modes of dispute and procedures of settlement, and sanctions applied were detailed. She described the context of two laws – the articulation of Yolngu and European jurisdictions – and the perception of Yolngu disputes by the mission, school staff and police. Women's resistance to betrothal, bestowal and widow inheritance also received attention, as did the new phenomenon of liquor sales in the newly established mining town at Gove.
Williams worked with the late Nugget Coombs, and proposed community justice mechanisms as a viable option for the recognition of Aboriginal customary law and its continued operation in collaboration with the Australian criminal justice system. In 1981 Janice Reid used the phrase ‘health as harmony; sickness as conflict' in her description of Indigenous approaches to illness.[xxii] Victoria Burbank documented Yolngu women's aggression in several major studies.[xxiii] From all this research, it was clear that women were not merely victims of aggression but active participants in a dynamic round of ritualised forms of aggression and peace-making.
Central Australia, too, was noted for the ritualised as well as random nature of Aboriginal aggression. Published in 1977, thirty years or more after it was written, T.G.H. Strehlow's description of Arrernte law and punishment examined the revenge killings that remain a feature of central Australian societies along with the patterns of clan responsibilities and inter-clan relations, residency, the function of magic and the theft of ritual objects.
This literature showed that the ebb and flow of conflict and resolution in Aboriginal societies was the norm, and that the kin-based institutions in which daily and seasonal life was conducted were conducive to such conflict and just as readily provided the means to its end, if only temporarily. Many disputes may not be amenable to resolution. Many feuds are long-lived and deeply entrenched in the social histories of groups.
In the midst of the slow transition from hunter-gatherer society to sedentary existence in small mission– or government-supervised settlements, these ethnographic adventures took place during the period of accelerating abuse of alcohol and other substances, and the rise of violence and violence-related injury and death, especially femicide, which occurred following the legalisation of the sale of alcohol to Aboriginal people in the early 1970s in the Northern Territory.
At this time, it was still possible to encounter the rich cultural life of hunter-gatherer societies in transition in mission settlements, cattle stations and even around townships. One could hear ceremonial singing while driving into these places, or if calling in on official business, a priest might ask one to wait until the person could be fetched from the ceremony, as was my experience at the old La Grange Mission, now Bidyadanga. In Arnhem Land, Cape York, around the Gulf of Carpentaria, throughout the arid and desert regions, and in the Kimberley, the Aboriginal seasonal and ceremonial calendar ruled both their worlds and the grazing economy. The ‘big holiday' was the monsoon season from December to March, and this term referred to the initiation ceremonies as well, for these occurred when the men were laid off during the long wet. During this period, ‘big men' obtained their status through, among other things, the attainment of excellence in singing and dancing of the sacred narratives at a wide range of ceremonies. Women, too, obtained high ritual rank, and in my youth, if I encountered one of the travelling ceremony women who painted the sacred designs and authorised the production and decoration of sacred objects, there was the promise of great excitement. I was usually invited to come to the ceremony, and I learnt a great deal about how these gender ritual politics ebbed and flowed across the vast landscapes, imbuing special places with the mnemonic of exquisite song cycles. The song men and women are becoming a rare few, and many of the traditional genres of music and performance have gone forever as the generation of men and women we saw in the 1970s and '80s passed away.
The inevitable diminution of the status of these men and women of high standing in the Aboriginal world, no longer valued for their encyclopaedic ritual, environ-mental and social knowledge, is the backdrop against which the traditions of the warrior were perverted into those of the bully from which neither men nor women were safe – and sometimes, as we now know, and to the horror of most Aboriginal people, nor were children.
The impact of alcohol and drug use, and petrol-sniffing, on family and community life and the old traditions is well known. The Australian Law Reform Commission reported that Aboriginal customary law had changed markedly; the Commissioners observed in 1987: ‘The erosion of traditional authority of Aboriginal leaders and the resultant weakening of Aboriginal customary laws have often been cited as an argument for the recognition of customary laws, although they have also been referred to as a justification for continued non-recognition, on the ground that it is "too late" for anything else.'
The Commission reported extensively on local justice mechanisms and customary and non-customary dispute-resolution mechanisms. The two volumes that laid out the recommendation for functional recognition of Aboriginal customary law, and the evidence the report provided on how Aboriginal law might work in conjunction with Australian law through these mechanisms, became the standard reference from which subsequent reforms – especially those that might reduce the alarm
-ing Aboriginal arrest and imprisonment rates – were developed. However, the Commission found that the long-standing ‘Aboriginal courts' were not without problems for the administration of justice, and recommendations were made for further reform. It emphasised the responsibility of the legal system to observe human rights and guarantee due process rights.
The Law Reform Commission had found that it was sufficient to identify customary laws in general terms for the purposes of recognition without the need of a single all-purpose definition, and that there had not been any particular difficulties with this practice. Even though there were no written accounts and no codes of Aboriginal customary laws similar to those found in some other cultures, there is general agreement among anthropologists that traditional Aboriginal societies had, and continue to have, a definable body of rules, norms and traditions which are accepted by the community.
When a group of medical experts and psychiatrists – G.R. Davidson, B. Nurcombe, G.E. Kearney and K. Davis – reported in 1978 on culture and conflict, specifically the effects of violence and aggression on adolescent youth, on Elcho Island, the impending tide of youth suicides could not have been imagined.[xxiv] Their concern was critical incidents of violence among young men. They found, contrary to expected patterns, that the young men appeared to be less involved in both mission and traditional activities and more restricted by traditional social expectations than females. The rates of Aboriginal deaths in custody, particularly the deaths of young Aboriginal males, became an issue of national importance in the 1980s. The Commonwealth Government established the Royal Commission into Aboriginal Deaths in Custody in 1989 and recommended community justice mechanisms, Aboriginal night patrols and other measures be supported by all Australian governments to reduce arrest and imprisonment rates. The Commission investigated the deaths of ninety-nine Aboriginal men and women who died in police, prison and juvenile detention custody in that decade.
The Northern Territory Aboriginal Issues Unit, which I headed, was charged with identifying the underlying causes of Aboriginal deaths in custody. We reported that, with a few minor exceptions, the Commonwealth and Northern Territory Governments had not acted systematically on the Law Reform Commission's recommendations. Aboriginal people considered its recommendations and consultations ‘unfinished business', an outstanding matter of great importance. We drew this to the attention of the Royal Commission in this way: ‘The body of recommendations and discussion of the Law Reform Commission "have gathered dust on a shelf" and many of the practical problems raised here by Aboriginal people, it is feared, will fall on deaf ears again. Systematic policy formulation and implementation in some of these areas where Aboriginal people have made practical suggestions could lead, as Aboriginal people themselves recognise, to real improvements in crime rates ... Acknowledging the existence and significance of Aboriginal customary laws for Aboriginal people is clearly a first step. A declaration to this effect, combined with a declared commitment that Aborigines are entitled to retain their identity and traditional lifestyle, would be one form of recognition. The consequences might then be left to the courts, governments and legislatures to work out. However, the differences between Aboriginal customary laws and the general legal system are such that specific rather than general forms of acknowledgment are necessary. These may take a number of forms ...'
Our report, Too Much Sorry Business – referring to the constant death and funeral ceremonies in Aboriginal communities – acknowledged that there were several reasons why customary law had lost its effectiveness in keeping law and order in Aboriginal societies. The report also analysed the formal attempts to establish community justice mechanisms in the Northern Territory, and the various reasons for, and contexts of, their failure and success. The situation described in that report, and the need for acknowledgement of Aboriginal law as well as policing and legal protection from the abuses of Aboriginal law, remain relevant.
The problem of youth detention, alcohol and drug abuse presented very practical problems for small Aboriginal communities, the report noted. Aboriginal law was not capable of detaining youth, although elders did not want young offenders leading other young people in their community astray. A concern for the human rights of youth – including young women – who absconded to avoid or escape the harsher aspects of Aboriginal law and ceremonial life was expressed in the report. This was relevant to the practice of allowing elders to take young offenders to ceremonies on the grounds that this would reform them.
The report addressed other factors that were leading to the demise of Aboriginal law as an effective measure of control in the communities. The clash of old and new governance systems in communities was important: the relatively new autocratic control of councils by elders and lack of consultation with other leaders and community members had led to abuse. Bitter disputes had resulted from decisions by council presidents without consultation. The severity and harshness of some aspects of Aboriginal law were not popular. Where missionaries had weakened traditional law, Aboriginal people complained about contradictory features of corporal punishment: it is both too severe and yet it often is not effective in preventing further transgressions. Aboriginal youth had begun to offend in order to be arrested by police and avoid traditional ceremonies. Jail had become an attractive alternative to ‘bush camp', with its strict and physically rigorous ceremonial life. Some anthropologists and criminologists[xxv] proposed that Aboriginal youth seek out imprisonment as a substitute ‘rite of passage' to manhood. There was no evidence for that proposition. Most offenders were oblivious to or unaware of the consequences of their actions, as they were under the influence of petrol or alcohol at the time of the offence. So offences could not be committed with the sole intent of detention.
Aboriginal elders were well aware that capital and even corporal punishments administered to offenders under traditional law were serious offences under Australian law. This illegality did not mean that these practices had ceased or that elders agreed with Australian law. Justice Toohey argued that substantive evidence of an anthropological nature ought to be given to demonstrate that customary law was a factor in the offence before the court could take customary law into account in the punishment.[xxvi]
Funerary rites and offending patterns were also linked: those aspects of culture which dealt with death, such as ceremonies, Aboriginal coronial inquiries and the necessity for punishment were intensified by high Aboriginal death rates, especially among young to middle-aged Aboriginal men. The particular ritual behaviours intensified by the high adult mortality rates in the Northern Territory are prescribed violence, such as violence between female cognates and in-laws at funerals, heavy alcohol consumption that is required after a death to help close male kin mourning, the concomitant violence that accompanies such drinking, ‘payback' assaults and homicides that occur because of intoxication.
Demands for ‘payback' or ritual punishment applied even when an offender had been arrested, and brought the consequence of double jeopardy in sentencing for the offenders. Police were unaware of these developments when apprehending and remanding offenders. Magistrates and officials acknowledged that the communities often must settle their own disputes and, importantly, the need for formal assistance to Aboriginal people to assist them to keep law and order according to the dictates of their own culture.
It was hardly surprising, then, that women who were on the receiving end of so much of the violence – which was neither regulated effectively by traditional controls or by the state – were adamant that unhindered police involvement was required to control domestic violence – that the experiment in grafting two systems together in a way that also ensured a safe and productive living environment demanded more than wishful thinking.