INDIGENOUS CRIME AND SETTLER LAW: WHITE SOVEREIGNTY AFTER EMPIRE by HEATHER DOUGLAS and MARK FINNANE

Date01 June 2013
Published date01 June 2013
DOIhttp://doi.org/10.1111/j.1467-6478.2013.00625.x
INDIGENOUS CRIME AND SETTLER LAW: WHITE SOVEREIGNTY
AFTER EMPIRE by HEATHER DOUGLAS and MARK FINNANE
(Basingstoke: Palgrave Macmillan, 2012, 280 pp., £65.00)
Heather Douglas and Mark Finnane have identified a theme that enables an
original, synoptic account of Australia's colonial history: the practical
difficulty of executing colonial sovereignty over Australian Aborigines as
criminal jurisdiction, particularly when both perpetrator and victim are
Aboriginal (crimes inter se). Australia is but one of the `places where
Indigenous custom endorses violence as a response to perceived wrong-
doing' and where `deep questions about criminal jurisdiction over violence
and therefore about sovereignty and even citizenship arise' (p. 214). Thus,
their detailed a nd lucid review of A ustralian case s and institution s
contributes to a historically informed theory of `imperfect sovereignty' in
a world in which political claims made in cultural terms continue to succeed
and in which rates of Indigenous imprisonment remain stubbornly high in
settler colonial nation states.
Their work also speaks to an interpretive choice facing historians of
Australia's colonial experience. One narrative template emphasizes the
discontinuity of the recent (since c. 1970) more enlightened period with a
past whose harshness is now widely acknowledged and sincerely regretted;
the other points to the limitations of recent reforms and to the deep structural
continuities in the arbitrary violence of settler colonial actions.
To argue that Australia has made a rupture with its past, since the 1970s,
one can point to: reforms t o the Census (1971) that e nabled self-
identification to replace degree of genealogical purity as the measure of
the Indigenous population; a new willingness to question racism, including
the Racial Discrimination Act 1975; land rights statutes (1966±93, across
eight jurisdictions) that have placed more than 20 per cent of Australia's land
mass under various kinds of native title; parliamentary resolutions (in 1997±
8 and in 2008) apologizing for the removal of Indigenous children from their
families, and recognition (in the 1980s) of an Indigenous child's right to be
raised within that heritage; the High Court's rejection of the doctrine of terra
nullius in 1992; renewed resolve to measure and to terminate the precisely
defined socio-economic disparities (`gaps') between the Indigenous and non-
Indigenous populations.
However, to appreciate the underlying continuity of Australia's settler
colonial practice one need only bear in mind that each of the above `ruptures'
with the past is but a concession made by a colonial sovereign to a subordinate
party, each reform weighted with a burden of tutelage. Australian authority
remains colonial in that it will not and cannot step out of the civilizing project:
with every concession to their grievances, Indigenous Australians are being
remade as citizen-subjects, as kins(wo)men, as property-owners, as aspirants
to `the Australian way of life', as bearers of `human rights'. In this resolutely
un-Whiggish perspective, influentially propounded by Patrick Wolfe, the
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ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

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