The Treadmill of Identity: Treading Water, Paddling like a Duck but still in the Same Pond

Abstract

Examining the history and current state of defining what is an Aborigine in the landscape of Australian political affairs is a chronicle which is long and complex. The interests of Australia’s original peoples in these discussions are also complex and it is proposed here, shaped by notions of strategic essentialisms and exclusion from the modernity project. To understand some of these complexities, it is critical to identify why and by whom definitions of Aboriginality are generated. Placing definition-making within a context of settler-state motivations, a racial analytic and the requirement for testing a legislated ‘Aboriginality’ being placed onto Aboriginal Australian communities themselves, must also be central. Two major arguments are posited here: first, that a legal Aboriginality exists solely for the management of Indigenous populations to their end of Wolfe’s ‘territoriality’ and Razack’s ‘disposability’; and second, that Indigenous Australians – like other Indigenous peoples around the world – are continually forced to speak to legal Aboriginalities which represent almost none of the interests or challenges they face in their struggle for physical and cultural survival.

Notes

1 This article uses the terms Aboriginal Australians and Indigenous Australians which are names that we, Indigenous Australians, are called. The focus of the article is to identify the complexity of these positionalities and hence it shows there is no ‘correct’ term. The terms are all historically placed and, as Coulthard (2014) argues, continues the settler-state defining processes. Glen Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (University of Minnesota Press 2014). Eve Fesl, Conned (University of Queensland Press 1997) encouraged us to know our own names and use them where possible to resist our ownership, and I would add definition, by others. This article further discusses these concepts.

2 Capital for Aborigines is to honour the use of this label by Aboriginal Australians, reclaiming it from the ‘aboriginal native’ used in Australia’s constitution. This is discussed further in this article; For further discussion of Aboriginality see also Bronwyn Carlson, The Politics of Identity: Who Counts as Aboriginal Today? (Aboriginal Studies Press 2016).

3 Junaid Rana, ‘The Racial Infrastructure of the Terror-Industrial Complex’ (2016) 34(4) Social Text 111.

4 Indigenous Australians is a term that sometimes is understood to include Indigenous peoples of the world whom also live in Australia. This is in part why organisations like the New South Wales Aboriginal Education Consultative Group have resolved to utilise the terms Aboriginal and Torres Strait Islander.

5 New South Wales AECG Incorporated, Aboriginality and Identity: Perspectives, Practices and Policies (NSWAECG 2011) 4.

6 Sherene H Razack, ‘Gendering Disposability’ (2016) 28(2) Canadian Journal of Women and the Law 285.

7 National Museum of Australia, White Australia Policy (online) <http://www.nma.gov.au/defining-moments/resources/white-australia-policy> (last accessed 21 November 2018).

8 Above note 6.

9 See, for example, Ben Westcott, ‘The arguments for and against Australia Day on January 26’ CNN (online) 26 January 2018 <https://www.cnn.com/2018/01/25/asia/australia-day-2018-date-debate-intl/index.html> (last accessed 13 March 2018); Claudianna Blanco and Liz Deep-Jones, ‘Jacinta Price: “People aren’t celebrating the fact that Aboriginal people have suffered”’ NITV (online) 26 January 2018 <https://www.sbs.com.au/nitv/nitv-news/article/2018/01/26/jacinta-price-people-arent-celebrating-fact-aboriginal-people-have-suffered> (last accessed 13 March 2018); Broede Carmody, ‘“So many mistruths”: Sunrise cops heat over Aboriginal adoption segment’ The Age (online) 13 March 2018 <https://www.theage.com.au/entertainment/tv-and-radio/so-many-mistruths-sunrise-cops-heat-over-aboriginal-adoption-segment-20180313-p4z46h.html?_ga=2.55458667.1532118250.1521138862-1105531106.1521138862> (last accessed March 13 2018).

10 Alison J Whittaker, ‘White Law, Blak Arbiters, Grey Legal Subjects: Deep Colonisation's Role and Impact in Defining Aboriginality at Law’ (2018) 20 Australian Indigenous Law Review 1 at 4.

11 An Aboriginal or Torres Strait Islander is a person of Aboriginal or Torres Strait Islander descent who identifies as an Aboriginal or Torres Strait Islander and is accepted as such by the community in which he [or she] lives. Department of Aboriginal Affairs, Report on a Review of the Administration of the Working Definition of Aboriginal and Torres Strait Islanders (1981) cited in J Gardiner-Garden, The Definition of Aboriginality, 2000–01 (Research Note 18, 2000) in Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia (Report 96, May 2003).

12 These are not being used as legal terms in this description.

13 Australian Government, ‘About’ Australian Government Productivity Commission (online) <http://www.pc.gov.au/about> (last accessed 8 March 2018).

14 Nakkari Thorpe, ‘Productivity Commissioner role one step closer despite Indigenous definition row’ NITV (online) 1 March 2018 <https://www.sbs.com.au/nitv/nitv-news/article/2018/02/28/productivity-commissioner-role-one-step-closer-despite-indigenous-definition-row> (last accessed 9 November 2018); Department of the Prime Minister and Cabinet, Productivity Commissioner role one step closer despite Indigenous definition row (media release) 28 February 2018 <https://ministers.pmc.gov.au/scullion/2018/indigenous-productivity-commissioner-step-closer-reality> (last accessed 9 November 2018).

15 Treasury Laws Amendment (2017) Bill, Schedule 2 (Cth).

16 Karen Wyld, ‘Productivity Commissioner dispute shows Government does not understand the definition of Indigenous people today’ NITV (online) 28 February 2018 <http://www.sbs.com.au/nitv/article/2018/02/27/productivity-commissioner-dispute-shows-government-does-not-understand-definition-1> (last accessed 28 February 2018).

17 Department of the Prime Minister and Cabinet, Indigenous Productivity Commissioner a step closer to reality (media release) 28 February 2018 <https://ministers.pmc.gov.au/scullion/2018/indigenous-productivity-commissioner-step-closer-reality> (last accessed 8 March 2018).

18 Whittaker above note 10.

19 As above at 22.

20 Anti-Discrimination Act 1977 (NSW) s 14.

21 Stephanie Gilbert, ‘Challenges for Indigenous and non-Indigenous practitioners in the neoliberal context’ in Bob Pease, Sophie-Goldingay, Norah-Hosken and Sharlene-Nipperess (eds) Doing Critical Social Work: Transformative Practices for Social Justice (Allen & Unwin 2016) 211.

22 Anti-Discrimination Act 1977 (NSW) s 14.

23 For further discussions see Australian Institute of Aboriginal and Torres Strait Islander Studies, Proof of Aboriginality (online) n.d. <https://aiatsis.gov.au/research/finding-your-family/before-you-start/proof-aboriginality> (last accessed 1 August 2020).

24 See, for example, Kimberley Lands Council, What is native title (online) n.d. <https://www.klc.org.au/what-is-native-title/> (last accessed 1 August 2020).

25 See, for example, New South Wales Aboriginal Lands Council (online) <http://alc.org.au/land-councils/confirmation-of-aboriginality.aspx> (last accessed 1 August 2020).

26 See, for example, Rio Tinto, People (online) n.d. <http://www.riotinto.com/australia/local-and-indigenous-participation-16134.aspx> (last accessed 1 August 2020).

27 For an example of university admissions processes, see Deakin University, Application form - NIKERI Institute (online) n.d. <http://www.deakin.edu.au/courses/ike/courses/application-form> (last accessed 1 August 2020).

28 Debate over the recognition of customary law, restorative justice and other concepts has been occurring in legal circles in Australia for over thirty years. Current debates include how Aboriginality is considered in sentencing. See, for example, Dina Yehia, ‘Sentencing Aboriginal Offenders’ paper presented at the ALS Conference on 1 July 2003 <https://www.publicdefenders.nsw.gov.au/Pages/public_defenders_research/Papers%20by%20Public%20Defenders/public_defenders_sentencing_aboriginal_offenders.aspx> (last accessed 1 August 2020).

29 Companies created through the Aboriginal and Torres Strait Islander Act 2006 (CATSI Act) (Cth).

30 See Victorian Aboriginal Education Association Inc (online) <http://www.vaeai.org.au/>.

31 Patrick Wolfe ‘Settler colonialism and the elimination of the native’ (2006) 8(4) Journal of Genocide Research 387 388.

32 There has been some conversation that the NSW government might be providing Confirmations, and certainly some Aboriginal incorporated bodies have changed the way Confirmations are provided. See Ella Archibald-Binge, ‘$99 online confirmation of Aboriginality service provokes backlash’ NITV (online) 29 May 2017 <https://www.sbs.com.au/nitv/nitv-news/article/2017/05/25/99-online-confirmation-aboriginality-service-provokes-backlash> (last accessed 1 August 2020; Whittaker above note 10 at 27-43 for further discussions.

33 National Native Title Tribunal, Extract from the National Native Title Register Federal Court Number: QUD6249/98 (online) 12 December 2011 <http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/NNTR%20Extracts/QCD2011_003/NNTRExtract_QCD2011_003.pdf> (last accessed 4 April 2018).

34 U.S Department of the Interior ‘Tribal Enrollment Process’ (online) n.d. <https://www.doi.gov/tribes/enrollment> (last accessed 4 April 2018).

35 As above.

36 A base roll is the original list of members as designated in a tribal constitution or other document specifying enrolment criteria. Other shared ideas might include tribal blood quantum, tribal residency, or continued contact with the tribe. As above.

37 Henry Louis Gates Jr. and Meaghan E.H. Siekman, ‘How do I legally prove Native American Ancestry’ The Root (online) 1 September 2017 <https://www.theroot.com/how-do-i-legally-prove-native-american-ancestry-1790877932> (last accessed 4 April 2018).

38 Native Title Research Unit, ‘AIATSIS Corporate profile: Kyburra Munda Yalga Aboriginal Corporation RNTBC’ (online) <https://docs.google.com/viewer?url=http%3A%2F%2Fnativetitle.org.au%2Fdocuments%2FQLD_KyburraMundaYalga.pdf> (last accessed 4 April 2018).

39 For further information on Close the Gap see <http://www.healthinfonet.ecu.edu.au/closing-the-gap/policies-strategies>.

40 National Archives of Australia, The 1967 Referendum - Fact Sheet 50 (online) 2018 <http://www.naa.gov.au/collection/fact-sheets/fs150.aspx> (last accessed 1 March 2018).

41 As above.

42 For further discussion on this point see Stephanie Gilbert, Women and Constructing Re-Membering: Identity Formation in Stolen Generation Women PhD thesis (University of Newcastle 2013) <http://nova.newcastle.edu.au/vital/access/manager/Repository/uon:12422?queryType=vitalDismax&query=stephanie+gilbert>.

43 Aborigines Protection (Amendment) Act 1940 (NSW).

44 As above

45 In making this Act it also allowed for the amendment of the Aborigines Protection Act 1909 (NSW).

46 Aborigines Protection (Amendment) Act 1940 (NSW).

47 See Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children and Their Families (HREOC 1997).

48 John Chesterman and Brian Galligan, Citizens Without Rights: Aborigines and Australian Citizenship (Cambridge University Press 1997).

49 As above at 84.

50 See, for example, Tammy Solonec, ‘Why saying “Aborigine” isn’t OK: 8 facts about Indigenous people in Australia’ Amnesty International (online) 9 August 2015 <https://www.amnesty.org/en/latest/campaigns/2015/08/why-saying-aborigine-isnt-ok-8-facts-about-indigenous-people-in-australia/> (last accessed 1 August 2020); Stefan Armbruster, ‘From taking on Bolt to talking up literacy: Author Anita Heiss on constitutional recognition’ SBS News (online) 24 May 2017 < https://www.sbs.com.au/news/from-taking-on-bolt-to-talking-up-literacy-author-anita-heiss-on-constitutional-recognition> (last accessed 1 August 2020); Richard Ackland, ‘Nothing black and white about Bolt's case and right to free speech’ SBS News (online) 1 April 2011 <https://www.smh.com.au/politics/federal/nothing-black-and-white-about-bolts-case-and-right-to-free-speech-20110331-1cn8l.html> (last accessed 1 August 2020).

51 Australian Law Reform Commission above note 11.

52 Gardiner-Garden above note 11 at s 36.15.

53 See, for example, Aborigines Protection Act (1909) (NSW).

54 Department of Aboriginal Affairs above note 11.

55 Gardiner-Garden above note 11 at s 36.15.

56 Whittaker above note 10 at 22.

57 Gardiner-Garden above note 11 at s 36.16.

58 As above at s 36.18 quoting Mabo v Queensland (No 2) (1992) 175 CLR 1, 70 (Brennan J).

59 For further discussion see Chris Cunneen, ‘Sentencing, Punishment and Indigenous People in Australia’ (2018) 3(1) Journal of Global Indigeneity 1.

60 David Theo Goldberg, Racist Culture: Philosophy and the Politics of Meaning (Wiley-Blackwell 1993) 186.

61 Wyld above note 16.

62 Gardiner-Garden above note 11 at s 36.14.

63 Whittaker above note 10 at 12.

64 As above at 29.

65 Deborah Bird Rose, ‘Land Rights and deep colonising: The erasure of women’ (1996) 3(85) Aboriginal Law Bulletin 6.

66 Achille Mbembe, ‘Necropolitics’ (2003) 15(1) Public Culture 11.

67 Whittaker above note 10 at 13.

68 Denise Ferreira Da Silva, ‘Towards a Critique of the Socio-Logos of Justice: The Analytics of Raciality and the Production of Universality’ (2001) 7(3) Social Identities 421.

69 As above at 422.

70 Achille Mbembe, ‘Necropolitics’ (2003) 15(1) Public Culture 24.

71 As above at 67.

72 Radhika Mohanram, Black Body: Women, Colonialism, and Space’ (University of Minnesota Press 1999) 136.

73 As above at 67.

74 Brendan Hokowhitu, ‘Monster: Post-Indigenous Studies’ in Aileen Moreton-Robinson (ed) Critical Indigenous Studies: Engagements in First World Locations (The University of Arizona Press 2016) 83, 85.

75 AIATSIS, ‘We Hereby Make Protest: The 1938 Day of Mourning’ (online) n.d. <https://aiatsis.gov.au/exhibitions/day-mourning-26th-january-1938> (last accessed 9 March 2018).

76 As above.

77 Katherine Ellinghaus, Blood Will Tell: Native Americans and Assimilation Policy (University of Nebraska Press 2017); ‘Residential Schools in Canada’ (The Canadian Encyclopaedia) <https://www.thecanadianencyclopedia.ca/en/article/residential-schools/> (last accessed 16 July 2018).

78 Brendan Hokowhitu, ‘Monster: Post-Indigenous Studies’ in Aileen Moreton-Robinson (ed) Critical Indigenous Studies: Engagements in First World Locations (The University of Arizona Press 2016) 83 at 86.

79 Brendan Hokowhitu, ‘Maori: Kua Ki Muri, Front to Back’ in Robert Warrior (ed) The World of Indigenous North America (Routledge 2014) 446.

80 Above note 78 at 88; Aileen Moreton-Robinson, The White Possessive: Property, Power, and Indigenous Sovereignty (University of Minnesota Press 2015) xiii.

81 Above note 78 at 86.

82 Moreton-Robinson above note 80 at xiii.

83 As above.

84 Above note 78 at 89.

85 Kim Tallbear, Native American DNA: Tribal Belonging and the False Promise of Genetic Science University of Minnesota Press 2013.

86 As cited in Deb Steel, ‘Indigeneity: Who has claimed you back?’ WindSpeaker (online) 13 February 2018 <http://www.windspeaker.com/news/windspeaker-news/indigeneity-who-has-claimed-you-back/> (last accessed 15 March 2018).

87 As above.

88 Above note 86.

89 As above.

90 As above at 82.

91 As above.

92 As above.

93 As summarised in above note 86.

94 Above note 86.

95 Linda Geddes, ‘There is no DNA test to prove you’re Native American’ New Scientist (online) 5 February 2014 <https://www.newscientist.com/article/mg22129554-400-there-is-no-dna-test-to-prove-youre-native-american/#.WsJvskPEIXM.email> (last accessed 14 August 2019).

96 As above.

97 As quoted in above note 96.

98 Above note 86.

99 Above note 96.

100 As above.

101 As quoted in above note 86.

102 For further discussion on this topic, see above note 2.

103 Sean Richley and Ryan E Carlin, ‘Skin Tone and Assimilation’ (2018) Social Science Quarterly 1.

104 Sherene Razack, ‘What is to be gained by looking White People in the eye? Culture, Race, and Gender in cases of Sexual Violence’ in Michael Ryan (ed) Cultural Studies: An Anthology (Blackwell Publishing 2008) 545.

105 Deb Steel, ‘Strong focus on identity issues for upcoming Indigenous Women’s Symposium’ WindSpeaker (online) 25 January 2018 <http://www.windspeaker.com/news/windspeaker-news/strong-focus-on-identity-issues-for-upcoming-indigenous-womens-symposium/> (last accessed 15 March 2018).