%20-%20https://sketch.com%20--%3e%3ctitle%3e3ECBBF50-FD08-412A-943D-2CFC5E025A16%3c/title%3e%3cdesc%3eCreated%20with%20sketchtool.%3c/desc%3e%3cg%20id='Stylesheet'%20stroke='none'%20stroke-width='1'%20fill='none'%20fill-rule='evenodd'%3e%3cg%20transform='translate(-926.000000,%20-668.000000)'%20id='BUTTONS'%3e%3cg%20transform='translate(100.000000,%20597.000000)'%3e%3cg%20id='BTN-/-RIGHTS'%20transform='translate(816.000000,%2065.000000)'%3e%3cg%20id='ICON-/-Rights'%20transform='translate(10.000000,%206.000000)'%3e%3cpath%20d='M13.5752841,0%20L1.34943182,0%20C0.59375,0%200,0.586666667%200,1.33333333%20L0,22.6666667%20C0,23.4133333%200.620738636,24%201.34943182,24%20L17.6505682,24%20C18.40625,24%2019,23.3866667%2019,22.6666667%20L19,5.36%20L13.5752841,0%20Z%20M13.5752841,1.89333333%20L17.0838068,5.36%20L13.5752841,5.36%20L13.5752841,1.89333333%20Z%20M1.34943182,22.6666667%20L1.34943182,1.33333333%20L12.1988636,1.33333333%20L12.1988636,5.36%20C12.1988636,6.10666667%2012.7926136,6.69333333%2013.5482955,6.69333333%20L17.6235795,6.69333333%20L17.6505682,22.6666667%20L1.34943182,22.6666667%20Z'%20id='Shape'%20fill='%23595959'%20fill-rule='nonzero'%3e%3c/path%3e%3ccircle%20id='Oval'%20stroke='%23595959'%20stroke-width='1.5'%20fill='%23595959'%20cx='9.5'%20cy='13.5355339'%20r='5.5'%3e%3c/circle%3e%3cpolyline%20id='Path-2'%20stroke='%23FFFFFF'%20stroke-width='1.5'%20transform='translate(9.500000,%2013.035534)%20rotate(45.000000)%20translate(-9.500000,%20-13.035534)%20'%20points='8%2016.0355339%2011%2016.0355339%2011%2010.0355339'%3e%3c/polyline%3e%3c/g%3e%3c/g%3e%3c/g%3e%3c/g%3e%3c/g%3e%3c/svg%3e)
Introduction
‘In the case of law, there is a reason to be afraid of ghosts.’
(Cornell, Reference Cornell1992, p. 158)‘In a world replete with images and representations, whom can we not see or grasp, and what are the consequences of such selective blindness?. . .How is visibility possible? For whom, by whom, and of whom? What remains invisible, to whom, and why? For those people who are excluded from the visualizing apparatuses of the disciplinary regimes of modern power-knowledge networks, the averted gaze can be as deadly as the all-seeing panopticon that surveys the subjects of the biopolitical state.’
(Haraway, Reference Haraway1997, p 202)Williams (Reference Williams1997, p. 17) writes that ‘[h]ow, or whether, blacks are seen depends upon a dynamic of display that ricochets between hypervisibility and oblivion’. Whites are rarely on display because of their race; whiteness is a quality that while omnipresent is so obscured within law that it is extremely difficult to capture directly;Footnote 1 it is ‘as elusive as it is pervasive’ (Ravenscroft, Reference Ravenscroft and Moreton-Robinson2004, p. 3). The slipperiness of whiteness is to a large degree due to the fact that as an experience of privilege it exercises that privilege by remaining unspoken and invisible. A condition of privilege is the capacity to have one’s identity left uninterrogated. For white people, race is rarely acknowledged as part of their lived experience of embodiment: race is only visible in other bodies. One of the difficulties with trying to ‘see’ whiteness in law is that it is so often buried in a highly racialised Other. However, as Perkins (Reference Perkins and Moreton-Robinson2004, p. 174) writes, this burial may only convince those for whose benefit it is done:
‘If “whiteness as power is maintained by being unseen”. . .the question remains: Unseen by whom? Those on whom such power impacts do not fail to see it and people of colour generally do not fail to see whiteness around them.’
In this paper, I write about the way that white people have imposed legal and genetic forms of identification on indigenous peoples. As part of this discussion, my intention is that the assumptions of whiteness also be exposed.
I. The human genome diversity project and genetic identification
‘How many times have you heard, “you are living on the bones of your ancestors”? This project will enable those ancestors to speak, and to say, “I am a Yuchi. . .I want to go with my people. We used to live here”.’
(John Moore to Yuchi community group, quoted in Grounds, Reference Grounds1996, p. 65)In 1993, John H. Moore, an academic and committee member of the Human Genome Diversity Project (the HGDP), came to visit members of the Yuchi community in Oklahoma to persuade them of the benefits of participation in the project. The HGDP, proposed in 1991 as a counterpoint to the Human Genome Project (HGP), aimed to study and protect human diversity to offset and complement the HGP’s study of human commonality. The Yuchi were identified as an ideal group to be studied under the HGDP because of their retention of their distinctive language and their relative genetic isolation. In return for their contribution of genetic material in the form of blood donations, the Yuchi were promised a share in both universal and community rewards of the project.
At a global level, the HGDP held out a general promise of greater knowledge of human evolution and identity. This, writes one Yuchi community member (Grounds, Reference Grounds1996, p. 65), did not hold much significance for the Yuchi.
‘Such questions. . .are, in general far removed from the concerns and framework of traditional conceptions regarding a people’s own past. Within most indigenous epistemologies the question of origins, the understanding of a people’s past, and early relations to other groups are dealt with in a very different way. Those communities know where they came from, who they are, and what their relationship to the land is.’
However, while the Yuchi may know ‘who they are’ they also had to convince others. One of the key incentives for the Yuchi as a community was the promise of genetic identification of themselves as a distinctive indigenous group.Footnote 2 At the same time as this meeting took place, the Yuchi were fighting for federal government recognition of their community as an independent tribe.
‘It was also pointed out. . .that ongoing efforts by Yuchi people to gain federal recognition could only be strengthened by a highly regarded scientific analysis of Yuchi DNA patterns – assuming that the study did indeed show the community’s biological uniqueness.’
(Grounds, Reference Grounds1996, p. 64)Footnote 3In addition, for individual Yuchi (and other indigenous individuals), ‘there is the potential in the HGDP of confirming Indian ancestry or increasing legal blood quantum for people who lack documents’ (Moore, Reference Moore1996, p. 62). Genetics, then, holds out a specific promise to indigenous peoples: that they will be able to prove themselves indigenous to white institutions, particularly legal institutions.
The Yuchi Tribal Organization was denied federal recognition in 1995, a denial that seemed particularly ironic given the group’s status as a targeted group under the HGDP, as one Yuchi member pointed out:
‘How can one arm of government say that we don’t exist when we do exist, and when another government-backed program wants to study us?’
(Corky Allen, Yuchi activist, quoted in Grounds, Reference Grounds1996, p. 65)The Yuchi meeting over the HGDP was set against a backdrop of intense indigenous opposition to the project. The HGDP was controversial amongst indigenous groups for a host of reasons, including the failure to include indigenous people in the early stages, except as objects of study; the insensitive language of the goals of the project, which spoke of indigenous peoples as if they were about to become extinctFootnote 4 and the ugly resonances with past indigenous experiences of scientific and social exploitation.Footnote 5
The lack of early involvement, or even consultation, of indigenous peoples in the project indicates that those who were responsible in the early planning stages did not anticipate any serious objection to the project. Once the vehemence of indigenous opposition became clear, those involved in the project demonstrated genuine shock at the extent of the criticism and by their own casting as destructive or corrupt actors, out to exploit indigenous people.Footnote 6 They responded by presenting themselves as victims of circumstance or by locating the true ‘guilt’ elsewhere: in indigenous people. They were unlucky, the timing was bad or they were merely naïve.Footnote 7 On the other hand, the indigenous response was hysterical (Moore, Reference Moore1996, p. 60), distorted by corrupt middlemen,Footnote 8 selfishFootnote 9 and ignorant.Footnote 10
Some of those involved with the project expressed their incomprehension over the lack of trust, generosity and altruism in the indigenous response to the HGDP. Tauli-Corpuz (Reference Tauli-corpuz and Tokar2001, p. 252), tells of her experience as a co-panelist at a conference with a former committee member of the HGDP:
‘During the open forum portion he said he couldn’t understand what indigenous peoples have against the extraction of blood if this means they can contribute to the discovery of new cures for diseases. If he were asked to give his blood in order to help others get well, he would have no second thoughts about it, he argued.’Footnote 11
As well as this opportunity to contribute to the universal good, those involved in the project reiterated the benefits to indigenous communities of genetic identification (Moore, Reference Moore1996, p. 62).
White people, occupying dominant positions in law and science, have both a desire and a vested interest in appearing to be ‘good’ and ‘right’ in their application of legal and technological power. The desire is itself an indicator of repressed racial awareness because without any sense of guilt, however buried, over the exercise of racial power, there would be no defensiveness. Neutrality offers the appearance of ‘goodness’ and ‘rightness’ and the scientists involved in the HGDP were clearly loath to give up the semblance of neutrality. Therefore, they continued to locate what was good and right in themselves: they were offering indigenous peoples a benefit, albeit one as simple as the possibility of a certifiable identity, and to locate what was problematic or political in indigenous peoples: they were ignorant, lacked altruism or were politically corrupt.
There are two kinds of visibility playing out in the promises and accusations around genetic identification in the HGDP. The first is the promise to indigenous peoples of the chance of legal and bureaucratic visibility, an identity that was in the Australian situation originally erased by law. Genetics is presented to indigenous peoples as a means of making visible to white institutions their identity as indigenous. Indigenous peoples are forced to present themselves before law and science as invisible peoples requesting embodiment, as possessing no set identity and requiring a legal determination of their status. This means that the promise of genetic technologies is at the same time a continuation of attempts to deny or obliterate indigenous presence. By examining cases on defining Aboriginality in part III this paper examines more closely how racial identity is constructed through law and genetics.
The second kind of invisibility is the blind spot of racial privilege that in this case is revealed by the reactions of the researchers involved in the HGDP to indigenous opposition. They do not see that their own racial identity constructs their relations with the indigenous ‘subjects’ of the HGDP and that they are burying all that is negative in that relationship in the indigenous people who oppose it. Part II of the paper looks at race as a ‘ghost’ that haunts white legal institutions and white identity. I use the term ‘ghost’ to describe those concepts and aspects of identity that are denied within the dominant philosophies of law but which cannot be extinguished. This paper explores some of the layers of ghostliness that comprise the complex relationship of law, race and genetic technologies, which include the ghosts that inhabit law, the ghosts that the white imagination makes of indigenous peoples and, ultimately, the ghosts of white racial consciousness.
II. Ghosts of law
A. Invisible Australians and the law
Genetics, as the HGDP experience shows, promises to illuminate racial identity, to reveal knowledge about indigenous groups – and so all of humanity – that would otherwise be lost as these groups fade under the effects of colonisation and to offer indigenous people the legitimacy of scientific identification. In Australia, Aboriginal people are made invisible in both history and law, and before I turn to the question of whether genetics has anything to offer in illuminating racial identity, I want to explore the nature of this invisibility.
Stanner has written in relation to the colonisation of Australia that white Australians participate in ‘a cult of forgetfulness practised on a national scale’ (W. E. H. Stanner, quoted in Reynolds, Reference Reynolds1999, p. 92). Europeans colonised Australia, with violence, over 200 years ago. The history of this ‘settlement’ in terms of its impact on the indigenous populations is largely ignored in white Australia and the Aboriginal people who died are mostly forgotten. Contemporary Australian institutions, including legal institutions, are founded on this absence and so play an active role in perpetuating the invisibility.Footnote 12
The complex Aboriginal legal systems that pre-date English-Australian law lie unacknowledged beneath it. Watson (Reference Watson1998, p. 1) has written of the ‘raw law’ that her ancestors came to know in the Australian Kaldowinyeri (creation time or dreamtime).Footnote 13 This law, she writes, is a direct relationship with the land and all things in it.Footnote 14 The law, like her people, was ‘naked’, but this nakedness was either covered up or simply not visible to the colonists:
‘It is as though we were never there; as though in being naked we were invisible to the coloniser. . .’
‘They did not see us or their own creation – genocide. They made their role as perpetrators of the genocide invisible also. Invisibility was made legal by the muldarbi [demon spirit] terra nullius. The illusion – invisibility of indigenous peoples – is a tool of the colonists and all others still today who seek to steal the land and violate the law.’
(Watson, Reference Watson1998, p. 4)Watson’s reference to the demon spirit that allowed her land to be taken is the legal doctrine of terra nullius that, from the earliest days of European settlement in Australia, permitted the European possession of land on the grounds that there was no-one else in possession of it.Footnote 15Terra nullius became the basis of the Australian legal system: Australia was declared an uninhabited country, or at least, a tract of territory practically unoccupied, or, at very least, unsettled, making legal its violent settlement, the transplantation of English law and the eradication of existing Aboriginal laws. Those laws, stories, histories and people which already existed were nothing: there was only land empty of law and people.Footnote 16 With the legal doctrine of terra nullius as the cornerstone of Australian history, colonisation was accepted in mainstream history as a benign act with only isolated incidents of violence.
‘And so it is we are vanished, invisible’ (Watson, Reference Watson1998, p. 4).Footnote 17 When Aboriginal Australians are invisible to white Australians, it is in part because Australian social and legal history starts from the point of denying their existence. The invisibility of Aboriginal Australians to white Australians is inextricably linked to law, since this failure of history to have given colonisers any ethical foothold in Australia is in the unique situation of Australia also a failure of law, relying for its authority on its origins in colonial settlement.
Terra nullius is no longer law,Footnote 18 but this invisibility continues to the present day, since it remains the original justifying principle for Australian law. If contemporary Australian law is based in part on the historical exclusion of terra nullius, then every law retains the shadow of that exclusion. This also allows for further exclusions, for example, Watson (Reference Watson1998, p. 4) argues that the ‘erasure of the indigenous being’ continues through the idea of extinguishment.Footnote 19 The foundation underlying Australian law, which is at heart English law, is the ghost of terra nullius.
B. The ghosts of law
The idea that law is based on morally illegitimate foundations is not unique to Australia and in fact some legal theorists claim that this is the case for all modern legal systems. Cornell (1990), following Derrida, refers to law’s ‘mystical foundations’ – these are law’s ‘ghosts’ and law is haunted by its own illegitimacy. Law’s mystical foundations, according to Cornell, lie in the obfuscation of the fact that law is not underpinned by any ultimate authority. The originating source of law is ultimately an act of violent substitution or establishment of power, through war, revolution, colonisation or other negation of whatever preceded it.
In Australia, to the question ‘where did law’s authority come from?’, one part of the answer was always that British law was authoritative because no authority existed before. This is clearly a fantasy and a falsehood, as was belatedly acknowledged in later case law.Footnote 20 One of law’s strengths in overcoming its lack of authority is the fact that case law proceeds by increment and it is a rare case that has to answer very broad questions of authority and legitimacy; there is therefore no process for questioning the basis of law’s authority. Constitutional cases, for example, commonly consider broad issues of power and authority and yet still assume the legitimacy of the Constitution itself. So, although terra nullius was instrumental in establishing the supremacy of British law over indigenous laws, the declaration that it had always been a falsehood could not render all current Australian laws void. The High Court, itself created by the Constitution, does not have the power to make such a declaration, even if this is the logical conclusion of their invalidation of terra nullius.
Just because there is no internal process for considering the authority of law does not mean that the question is beyond thought. One of the central questions of jurisprudence is the question of where law’s authority ultimately lies. Critical jurisprudence argues that the so-called originating principles of law cannot be separated from the social, political and cultural principles in which they are embedded (Karpin and O’Connell, Reference Karpin, O’connell, Baines and Rubio-Marin2005, p. 38).
If law, including the originating law, is embedded in cultural practice it is meaningless to look for a single authorising strand within a legal system (Karpin and O’Connell, Reference Karpin, O’connell, Baines and Rubio-Marin2005, p. 46). Nevertheless, law, in its practice and in its traditional jurisprudence represents, itself as a closed system. What is remarkable is that it retains the capacity to appear and function as intact even when it is broken open and its inconsistencies revealed. The critique of law by feminists, critical race scholars and postmodernists in the past few decades, has shown that law has no absolute authority. The powerful analyses of law from critical theorists have nevertheless not altered the foundations of law. Cornell (1990, p. 158) refers to this as law’s ‘. . .so-called potency, to keep coming in spite of its critics and its philosophical bankruptcy’.Footnote 21
Not all theorists agree that law’s lack of legitimacy is a problem. Some see the alternative – acknowledging law as a set of culturally embedded practices without unique authority – as inviting a state of moral indeterminacy, anarchy and violence (LaCapra, Reference Lacapra1990, p. 701). Others see law’s ability to construct authority out of thin air as a trait to be admired rather than a dangerous masquerade. Fish (Reference Fish and Aram Veeser1991/1999) while admitting that law is ‘in the business of producing the very authority it retroactively invokes’ points out that law’s capacity to create legitimacy from its own rhetoric is what gives it the power to do the work required of it:
‘[T]hat’s the law’s job, to stand between us and the contingency out of which its own structures are fashioned. In a world without foundational essences. . .there are always institutions. . .that are assigned the task of providing the spaces. . .in which we negotiate the differences that would, if they were given full sway, prevent us living together in what we are pleased to call civilization.’
(Fish, Reference Fish and Aram Veeser1991/1999, p. 203)Footnote 22The difference between theorists such as Fish and Cornell on this point is that Fish sees law as staving off violence, while Cornell sees law as participating in it. Fish sees law’s pretence of authority as a necessary one, because it allows the smooth workings of law to continue, and as long as they continue ‘civilisation’ continues. In his view, it is in all of our best interests to maintain the pretence about law in order to keep at bay the uncivilised and anarchic elements that lurk behind law’s protective stance. The feminist response outlined here differs because it asserts that to reveal law’s pretence is not to submit to violence but to accept moral responsibility for it and to open up law to the possibility of justice.
Law wills itself closed at the expense of those who would otherwise be included. A legal system that, for example, accepted its own illegitimacy in the wake of terra nullius would have to acknowledge indigenous laws in some meaningful way because such laws would have a validity that is otherwise denied them. Law, because it refuses to acknowledge its own moral indeterminacy and so relinquish power, persists in doing violence by excluding what does not fit within its own self-sustaining ideology.
C. Making visible the ghosts of law
Law may present itself as a closed system, but arguably it is not as impervious as it might appear. Further, if exclusion is a kind of death (from existence within the system), what is excluded by law may not disappear altogether, but remain on the peripheries, hovering in and out of consciousness.
Waldby (Reference Waldby2000, p. 151) states, following Freud, that ‘[the ghost] testifies to the sense that nothing is ever sufficiently dead, that death can never be sufficiently repressed, and that the absence of death is only ever provisional, an abject, malicious presence held in abeyance’. In response to the relentlessness of law that Cornell and Fish speak of is offset the relentless return of what is repressed: ‘[a] ghost never dies, it remains always to come and to come back’ (Derrida, Reference Derrida and Kamuf1994, p. 99).
Freud’s writing on ghosts (Reference Freud and Strachey1919/1955, p. 241) is called ‘the uncanny’; in the original German it is unheimlich, literally ‘unhomely’. Ghosts belong to the home; they are the strangers who are nevertheless linked to the point of origin (Ronell, Reference Ronell1993, p. xvii).Footnote 23 Freud (Reference Freud and Strachey1919/1955, p. 241) writes that the ghost is something repressed, and what is repressed is something that was pushed out of consciousness, exiled.
This raises the point that ghosts are in fact part of us, we speak of being ‘possessed’ by them because they are already inside us (Abraham, cited in Royle, Reference Royle2003, p. 200).Footnote 24 Psychoanalysis, in which postmodernism is rooted, is about having a divided self: that the subconscious is constantly shaping our conscious behaviour (Grosz, Reference Grosz1989, p. 19).Footnote 25 The existence of a subconscious demonstrates that we have a ‘foreigner inside’, that we are ‘strangers to ourselves’ (Kristeva, Reference Kristeva and Roudiez1991), inhabited by a consciousness that is of us and yet not within our control or our full knowledge. We could say that we have a ghost inside us, who haunts our speech (Freud, Reference Freud and Tyson1901/1975 (on Freudian slips)); our text (Grosz, Reference Grosz1989, p. 26), our dreams (Freud, Reference Freud and Strachey1899/1976) and our consciousness. As Grosz (Reference Grosz1989, p. 26) points out, Derridean deconstruction hinges on the idea that texts are also haunted by subconscious elements.Footnote 26
However, deconstruction is popularly understood as requiring an external critical analysis of language, which I would argue is another way of locating fundamental divisions in consciousness outside of ourselves: externalising our ‘ghosts’. I would argue that deconstruction should be inviting us to ‘read’ our own subconscious through the evidence of the texts (including the laws) that we produce.
This reading is useful in attempting to see what law excludes or denies, both the ghosts that animate and justify law, but have no real substance, and the ghosts who are those who have been denied life by law. Cornell (1990) is referring to the former when she says that ‘. . .[i]n the case of law there is a reason to be afraid of ghosts’. Cornell means that there is a reason to be afraid of the pretence of law’s authority, which in her view is monstrous, but the meaning of her statement is ambiguous: perhaps law should be afraid of the ghosts it makes – those people and ideas that it excludes in order to retain power. In this, I also take issue with Fish’s belief in the impenetrability of law; ghosts are more powerful than the conscious thoughts they drive. Law will be continually under the onslaught of the ghosts it makes, because ghosts, by their very nature cannot be done away with, but continue to haunt as long as they remain in existence yet without embodied life.Footnote 27
If ghosts are a part of our own selfhood, originating from an internal ‘home’, then they must be called back, invited in, made at home. This is where they are from and where they belong, inside our homes and minds. What is undesirable or even despised in the self cannot simply be discarded. What is rejected has to be embraced before it loses its uncanny power. Before it can be embraced, it must be seen. What is invisible does not cease to exist; it haunts. The ‘ghosts’ of law are what it excludes, and in the Australian context this is not only the ‘indigenous being’, but whiteness.
III. Seeing Aboriginality
‘No area of research and commentary by non-Aboriginal people has such potential to cause offence as does that which attempts to define “Aboriginality”. This determination of non-Aboriginal people to categorise and divide Aboriginal people is resented for many reasons, but principally, I suspect, because the worst experiences of assimilation policies and the most long term emotional scars of those policies relate directly to non-Aboriginal efforts to define “Aboriginality” and to deny to those found not to fit the definition, the nurture of family, kin and culture. To Aboriginal people there appears to be a continuing aggression evident in such practices.’
(Royal Commission into Aboriginal Deaths in Custody, 1991, para. 11.12.4)Aboriginality, ‘invisible’ and ghost-like to white Australian social and legal institutions, nevertheless has been continually scrutinised as a category of identity for the purposes of legal recognition. Not surprisingly, given the history of terra nullius and the material consequences flowing from colonisation (Dodson and Williamson, Reference Dodson and Williamson1999, p. 206), this process is complex and fraught. Definitions have oscillated between biological, most recently genetic, and social markers of identity. Throughout the cases that attempt to define who is an Aboriginal Australian are the same resonances of guilt and suppressed knowledge that testify to the ghostly presence of white racial consciousness.
A. Defining Aboriginality in law
Early legal definitions of Aboriginality tended to concentrate on biological descent, and tests based on ‘quantum of blood’ were common (Australian Law Reform Commission, 1986). This legislation, writes one commentator (Gardiner-Garden, Reference Gardiner-Garden2000), ‘produced capricious and inconsistent results based, in practice, on nothing more than an observation of skin colour’. The effect of the legislation was generally restrictive and discriminatory, determining for example, where Aboriginal people could live, work or marry.
Over time, and particularly once the Commonwealth government gained the power to legislate with respect to Aboriginal people,Footnote 28 legislation for the benefit of Aboriginal people was written; for example, giving Aboriginal people financial support to study or the entitlement to claim native title rights over land. These statutes use very broad definitions of Aboriginality, such as ‘a person of the Aboriginal race of Australia’.
Ascribing meaning in practice to the broad statutory definitions of Aboriginality was left to judges interpreting the statutes. In 1983, Justice Deane set out the classic legal definition of an Aboriginal person, called the three-part test:
‘By “Australian Aboriginal” I mean, in accordance with what I understand to be the conventional meaning of that term, a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognised by the Aboriginal community as an Aborigine.’
(Commonwealth v. Tasmania (1983), p. 274)Footnote 29The three-part definition, with its elements of descent, self-identification and community recognition therefore retains a biological component even as it introduces social and individual elements that allow for Aboriginal people to have some degree of self-definition. The biological element has been given different legal emphases over the years and remains important to contemporary definitions of Aboriginality by providing an ‘in’ for genetic interpretations of Aboriginal identity.
One of the pieces of legislation developed with the intention of benefiting Aboriginal people was the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth., Aust.) (‘the ATSIC Act’). The ATSIC Act established a Commission run for and by Aboriginal people, with regional councils throughout Australia, to establish some degree of self-government for Aboriginal Australians. ATSIC would develop policies, run programmes and be a voice for Aboriginal people in mainstream federal government.Footnote 30 Under the ATSIC Act, only Aboriginal people were eligible to vote in ATSIC elections or to stand for office in the organisation.
Under s. 4 of the ATSIC Act, an ‘Aboriginal person’ is defined according to the standard statutory definition of ‘a person of the Aboriginal race of Australia’. The openness of this definition has meant that cases almost inevitably followed where those who wanted to either vote or stand for election to the regional councils that made up ATSIC were challenged on the grounds that they were not Aboriginal.
These cases, along with others determining Aboriginality for the purpose of beneficial legislation, all purport to follow the three-part test. However, within that broad outline are very different approaches, which put equally different emphases on genetic descent.
B. When ‘blood’ becomes ‘genes’
In Gibbs v. Capewell (1995),Footnote 31 the respondent’s election to a regional council of ATSIC was challenged on the grounds that he was not an Aboriginal person. The judge’s decision shows law caught between two biological markers of race: blood and genes. Drummond J takes judicial notice of the fact that there are few ‘full blood’ Aborigines left in Australia, which leads him into complex considerations of what quantum of genes is sufficient to designate a person Aboriginal.Footnote 32
Drummond J is confident that the ATSIC Act comprehends ‘not only full blood descendents of the original inhabitants, but also persons who possess some Aboriginal genetic material’ (Gibbs v. Capewell (1995), p. 580). However, on a continuum of ‘wholly Aboriginal descent’ to no genetic material at all, the other elements of the three-part test – self-identification and community – recognition take on added importance.
In Gibbs v. Capewell, Aboriginality is a fact that exists independently of the self-perception of the person for whom it is declared. Aboriginality can exist even if the individual does not consider themselves Aboriginal, because of their descent. The three-part test is rejected in part, because Drummond J cannot accept that if someone is of ‘wholly’ aboriginal descent the elements of self-identification and community recognition should matter – genetics is enough.
On the other hand, however strongly individuals consider themselves Aboriginal and however much they are accepted by an Aboriginal community, this is insufficient if there is no evidence of genetic connection:
‘I reject the suggestion. . .that a person without any Aboriginal genes but who has identified with an Aboriginal community and who is recognised by that community as one of them can be an “Aboriginal person” for the purposes of this particular Act.’
(Gibbs v. Capewell (1995), p. 580)However, ‘concerning persons whose genetic claims to the appellation are exiguous or uncertain in proof’, then the elements of self-identification and community recognition become important in moving the person within or without of the boundaries of the racial classification:
‘The closer to the [racial] boundary the person’s genetic history. . .places him, the greater the influence of his conduct and of the conduct of the Aboriginal community.’
(Gibbs v. Capewell (1995), p. 583)Drummond J also includes with the category of persons of ‘wholly Aboriginal descent’ – those who are so obviously Aboriginal that they cannot deny it – individuals who are of such substantial descent that they look Aboriginal. However much those individuals consider themselves non-Aboriginal, however much an Aboriginal community may deny them membership, their bodies are the stronger indicator of their true identity. Here creeps in embodiment, which has been hovering below the surface, unacknowledged. The test of Aboriginality is not what someone looks like, says Drummond J, but nevertheless someone cannot avoid being Aboriginal if:
‘[t]he degree of Aboriginal descent is so substantial that the person possesses what would be regarded by the generality of the Australian community as clear physical characteristics associated with Aboriginals. . .’
(Gibbs v. Capewell (1995), p. 580)Drummond J is clear that it is not external physical appearance that makes an individual Aboriginal; nevertheless, he quotes the High Court, stating that ‘pigmentation is a characteristic of race and may be of cogent evidentiary significance’ (Ofu-Koloi v. The Queen (1956), quoted in Gibbs v. Capewell (1995), p. 584).
Hovering below the surface, too, is whiteness: Aboriginality is defined according to the ‘common’ meaning of the word and this seemingly benign method of statutory interpretation in fact imports an invisible white yardstick of Aboriginality, since in Australia the ‘common’ meaning will be the dominant white meaning. Similarly, the perception of the ‘generality of the community’ about who looks Aboriginal is not the objective measure it appears. It is the person who looks Aboriginal to white people and the degree of ‘pigmentation’ that a white Australian would interpret as blackness that becomes the measure of Aboriginality.
In Gibbs, race plays two roles: on the one hand it is described as an ‘elusive’ (quoted from Mandla (Sewa Singh) v. Dowell Lee (1983), p. 19 in Gibbs v. Capewell (1995), p. 578) and ‘hopelessly imprecise’ term; on the other, it is immutable and unchangeable, as Drummond J states:
‘[R]ace (so it is said) is determined at birth and cannot subsequently be acquired or relinquished, while culture is acquired from a person’s upbringing and environment and is not a necessary element of a person’s race.’
(Gibbs v. Capewell (1995), p. 581)Genetics in this case is used to stave off the elusiveness of race. If race is genetic, definitions become matters of measurement rather than construction.
A genetic measurement of race is itself a direct descendent of blood quantum as racial identifier. Previous cases have also committed to this approach, some blatantly:
‘There must be many people in Australia with, say, 1/64th or 1/32nd Aboriginal genes, the presence of which is unknown to them and undetected by others. Even if such a trace of Aboriginal ancestry were proved, in my opinion, the person concerned would not ordinarily be called an “Aboriginal”. . .’
(Pincus J in State of Queensland v. Wyvill (1989), p. 615)Drummond J, as well as the judges in other cases that use a genetic measure of identity, do not try to explain what they mean by ‘genetic’ or ‘gene’. They appear to believe they are speaking scientifically, not metaphorically, and that their words have some natural meaning that does not require explanation.
They are on very tenuous scientific ground here, as there is no such thing as an ‘Aboriginal gene’ in the way that they seem to mean it, as an identifiable component of physical biology. Some writers (de Plevitz and Croft, Reference De plevitz and Croft2003, p. 105) claim that, even with advances in genetic technologies, it is unlikely that there will ever be a way of distinguishing Aboriginal people by genetic means:
‘The significant genetic diversity in the Aboriginal populations means that it is unlikely that there are a number of polymorphisms uniquely common to all Aboriginal people which could be identified as a set of “Aboriginal genes”.’ Footnote 33
However, the key point here is not whether a gene has the potential to identify Aboriginal people, but the way in which the gene as a metaphor is operating in the cases.Footnote 34 These cases, I would argue, are in a process of translating ‘blood’ into ‘gene’. In this process, the gene becomes the carrier of racial categorisation and the racism behind blood quantum is hidden within the seemingly neutral metaphor of the gene.Footnote 35
C. Overruling descent: the case of Tasmania
The judicial definition of Aboriginality takes on a different significance in the context of Tasmania, where the destruction of Aboriginal communities and cultures under colonisation was almost complete (Ryan, Reference Ryan1996).Footnote 36
Contemporary Aboriginal Tasmanians, if required to show genetic Aboriginal descent, have to trace their family trees back to a tiny group of Aboriginal people who, against all odds, had survived the various nineteenth-century attempts to destroy the Aboriginal population. A small group of Aboriginal women were taken by European sealers to live in the islands of Bass Strait north of the Tasmanian mainland. In addition, two women, Dolly Dalrymple and Fanny Cochrane (Smith), were acknowledged as Aboriginal women living on the Tasmanian mainland. The descendants of the sealer group and these two individuals form – if not the only – the most readily acknowledged group of Tasmanian Aborigines (Shaw v. Wolf (1999), p. 218).Footnote 37
However, there are other Tasmanians who believe they are Aboriginal, without any connection to these individuals, claiming other possible ancestors. These are difficult to prove but also impossible entirely to discount. They rely on claims that certain individual Aborigines survived being rounded up for the ‘settlements’ and escaped official record, usually through some association with white society. For example, some Aboriginal children were taken to the Orphan School in Hobart for ‘assimilation’. Some so-called ‘half-caste’ women were reportedly working in white households as servants. Some European couples may have adopted Aboriginal children, or passed off out-of-wedlock children from liaisons with Aboriginal people as children of a marriage. It is very difficult to say that Aboriginal descent can be definitively ruled out if not from one of the two ‘reliable’ sources.
In addition, it can be very difficult for any individual to prove Aboriginal descent from official or other written records. Early nineteenth-century records were handwritten and can be difficult to read, names were often spelled differently from record to record, common surnames and popular first names meant that many people shared the same name and dates were often recorded incorrectly. Illegitimacy was concealed, not documented in public record. Aboriginality was not recorded on official forms, Aboriginal children were not registered at birth and the shame of black heritage meant that there was a strong interest in denying Aboriginality. Aboriginal heritage and knowledge of family and ancestors relied on oral traditions that were disrupted and mostly destroyed by colonisation.
The cases on establishing Aboriginality in Tasmania are striking for the complex and tortuous routes through history many of the respondents are forced to make to ‘prove’ they are Aboriginal. Accused, usually by others with ‘established’ Aboriginal ancestry, of not being Aboriginal, the respondents try to prove familial connections with a known Aboriginal such as Fanny Cochrane Smith or to argue that one of their ancestors, presumed white, was in fact Aboriginal. At times, their arguments come down to identifying a nineteenth-century individual who was unusually dark-skinned or whom they had heard was rumoured to be black. Sometimes they construct possible histories out of the flimsiest of archival suggestions. Such is the case for many of the eleven respondents in Shaw v Wolf (1999). Footnote 38
1. Shaw v. Wolf
In Shaw v. Wolf (1999), the respondents had run for election in the regional ATSIC elections. Their candidacy was challenged by the petitioners, who argued that the respondents were not eligible for election because they were not Aboriginal. For each of the respondents the judge considered his or her claim for biological descent, self-identification and community recognition, weighing each factor differently according to the circumstances of the individual.
In Shaw v. Wolf, the three-part test for Aboriginal identity is followed and Gibbs v Capewell (1995) is confirmed, but the descent element is stretched as far as the judge, Merkel J, can manage. Merkel J contextualises the case in three important ways. First, he acknowledges the history that has brought the respondents to the unhappy position of having to extract some form of identifying evidence from the flimsiest of sources. He points out early in the case that while the Act is supposed to redress some of the wrongs of colonisation, it is exactly those most affected by dispossession and dispersal who will have trouble establishing descent and thus identity. ‘[T]he European colonial destruction of aboriginality in the nineteenth century’, Merkel J writes, ‘is now sought to be rectified, in part, by a post-colonial statutory reconstruction of Aboriginality at the end of the 20th century’ (Shaw v. Wolf (1999), p. 208). Second, Merkel J does not see identity as a static inheritance of the past: ‘An individual’s self-conception does not occur in isolation but must be to some extent the result of interactions with, and responses from, others’ (Shaw, p. 210). Finally, and as part of this acknowledgement of the relational aspect of identity, Merkel J points out that Aboriginality is impacted by the white society in which it is embedded as well as Aboriginal society (Shaw, p. 211).Footnote 39
While Merkel J supports the decision in Gibbs v Capewell (1995) and agrees that proof is needed of actual Aboriginal descent, he undermines the concept of ‘descent’ by allowing personal and social identity to be proof of descent (Shaw v. Wolf, 1999, p. 211).Footnote 40 Merkel J gives an expansive interpretation of each of these, too: proof of self-identification as Aboriginal can include family oral histories and stories and proof of community acceptance can include acceptance by one’s own extended family or local non-Aboriginal community. For example, evidence was accepted that an individual decided they were Aboriginal because they heard a family member refer to their grandmother as a black woman; they went ‘mutton birding’ – a traditional Aboriginal activity – as a child; they heard their mother referred to as a ‘black bitch’; they were teased at school about their dark skin and hair colour.
By two further procedural means – placing the onus of proof on the petitioners to show that the respondents are not Aboriginal (very difficult given the paucity of evidence and the time over which descent is claimed) and applying a higher standard of proofFootnote 41 – the judge managed to find that all but two of the respondents were, in fact, Aboriginal.
Nevertheless, despite Merkel J’s obvious sympathy for the respondents and his unwillingness to make determinations against them, the element of ‘descent’ is still intact, and still looms over the respondents. There is very little of their views in the case, but one respondent, Beverley Wood, is quoted as saying:
‘I am sixty years old and found it absolutely heartbreaking that all my life, myself and my family have identified as Aboriginals and that two people can come along and try to take that away from me.’
(Shaw v. Wolf (1999), p. 246)Footnote 42Even with the expanded categories, the respondents struggle to find external evidence of identification as Aboriginal:
‘There didn’t have to be an act of identification because the blokes that I drank with at the pub or wherever all knew. So what did you want me to do? Jump up on the roof every day?’
(Shaw v. Wolf (1999), p. 241)One woman, Debbie Oakford, is found not to be Aboriginal because her painstaking attempts to find a genetic ancestor on either side of her family can be unequivocally discounted by the petitioners through archival evidence. Although Ms Oakford does demonstrate self-identification and some community recognition, it is not enough to overcome the evidence against descent.Footnote 43
Merkel J is clearly still uncomfortable with his role in determining Aboriginality. Sitting at the end of his judgment, part of it but nevertheless outside law (because non-determinative – a legal ‘aside’) are ‘concluding comments’ in which he expresses his discomfort with the legal task he has been given. He questions why that the law requires a ‘genetic’ approach, even though in reality identity is a social construct:
‘That some descent may be an essential legal criterion required by the definition in the Act is [to] be accepted. However in truth, the notion of “some” descent is a technical rather than a real criterion for identity, which after all in this day and age, is accepted as a social, rather than a genetic, construct.’
(Shaw v. Wolf (1999), p. 268)2. Patmore and others
The ongoing controversy surrounding Aboriginal identity in Tasmania is demonstrated by the enrolment of voters in the 2002 ATSIC election. In an attempt to deal with issues of Aboriginal identity an Indigenous Electors Roll was established, along with an indigenous committee to determine objections to identity of those enrolling to vote. Almost 1,300 Tasmanians applied to be included on the Roll. Of those, no objection was made to only 140 applicants (Patmore and others (2002), para. 42).Footnote 44
Some of the objections were from ‘well-known’ Tasmanian Aboriginals, whose reason for objecting was that they did not know the people claiming Aboriginality. One objection simply stated that none of the names to follow were indigenous persons, because the writer did not know them, and affixed 45 pages of names.
The tribunal in Patmore and others (2002) had to review the decision not to enroll 130 applicants to vote. In some cases the documentary evidence of Aboriginal identity was weak in the extreme. Nevertheless, the tribunal found that all applicants were Aboriginal through a pastiche of other evidence, ranging from photographs of dark-skinned relatives, to family stories, rumours and other indirect evidence, such as an applicant overhearing remarks about him having ‘a touch of the tar brush’. This evidence is used to override the force of unsupportive documentary evidence. For example, the tribunal states:
‘Both [the applicant] Mr Fisher and his mother have been subjected to discrimination on the grounds of their aboriginality. His grandparents told him of his aboriginality. We were shown a photograph of his uncle Percy who was a brother of his mother. The photograph exhibits dark skin colour. We consider that the oral history and this evidence survive the doubt flowing from the absence of a birth certificate for Harriet Campbell. As with most of the archival evidence, it does not negative aboriginality. It merely shows that it cannot be proved by documentary evidence of births, deaths and marriages.’
(Patmore and others (2002), para. 178)Even where documentary evidence appears to show that the claimed Aboriginal ancestor is in fact not indigenous, the tribunal finds that the documentary evidence might be wrong or even that the family may have wrongly identified the ancestor but that another unidentified ancestor may be Aboriginal, to account for the family belief in their own identity. For example, one group traced their Aboriginal lineage back to an ancestor who was subsequently found to be a convict and so not in any degree Aboriginal (Patmore and others (2002), para. 55). However, the tribunal still found that this did not negate ‘the long history of belief in aboriginal descent’ in the family, nor the fact that photographs show some family members with ‘dark skin colour and other aboriginal features’ (Patmore and others (2002), para. 55).
While Merkel J (Shaw v. Wolf (1999)) believes that identity is social he feels legally compelled to use a genetic descent approach. Patmore and others builds on elements from Shaw v Wolf and earlier cases, to move beyond a genetic concept of identity. The tribunal does this by, first, finding that although descent is necessary in a legal sense to prove Aboriginality, a respondent’s belief in his or her Aboriginality, along with community acceptance of this belief is better evidence of descent than ‘white’ evidence found in public records and other documents. In effect, what Patmore does is to say that if a person has a credible and genuine belief that they have some Aboriginal ancestry, then that is acceptable as proof of biological descent even in the face of documentary evidence proving otherwise.Footnote 45
Second, the tribunal takes a very different approach to racial identity than Gibbs v. Capewell (1995) or even Shaw v. Wolf (1999). Identity is not inherited and then passed down in a linear fashion, and the ‘descent’ requirement is viewed as an ‘aspect’ of Aboriginality, but ‘there is no requirement to find any actual line of descent nor to identify any full blood aborigine from whom the descent is traced’ (Patmore and others (2002), para. 40). In fact, the idea of ‘descent’ is subverted by the tribunal’s view that Aboriginality may be established if it is possible that a person has some Aboriginal heritage, coupled with assertions about just how extensive that possibility might be. Other cases assume that Aboriginality is ‘contained’ and separate from the general Australian population. In Patmore and others (2002), para. 30, the tribunal finds that European/Aboriginal interaction means that Aboriginal ‘genetic’ heritage could in fact be much more extensive than is generally accepted:
‘On our calculations, with generations of 25 years and each having three children, one Aborigine could account for 2,187 descendants after seven generations.’
This statement depicts Aboriginality as pervading the Australian population, invisible but enduring, in stark contrast to the assimilationist idea that blackness can be extinguished, turned ‘white’ through racial mixing. Unlike the genetic approach, which asserts that being 1/64th Aboriginal is not to be Aboriginal at all, Patmore potentially sees Aboriginality everywhere, and in this image is a suggestion of white Australia being haunted by an unseen but all-pervasive race.
Patmore and others (2002) does not step outside of established authority. It uses the classic three-part test and goes through each element. It follows suggestions in earlier cases that although descent is required, it may be enough that descent is ‘possible’ rather than definitively proved.Footnote 46 It follows Shaw v. Wolf (1999), when it states that self-identification and community recognition can themselves be evidence of descent. However, it goes further by preferring them to genetic evidence of descent and by removing the emphasis of biology in favor of an emphasis on belief. In this it is implementing what Merkel J in Shaw believed was the ‘social’ meaning of identity, one that he could not apply because it was not ‘legal’ but which continued to exist alongside the legal, genetic test of Aboriginality:
‘In a democratic society individuals have the right to adopt such identity and culture as they may choose to adopt. Likewise, subject to human rights and equal opportunity legislation, communities in such a society are free to recognise or refuse to recognise the identities or cultures adopted by the various members of that society. Those are matters of sociology and generally there should be little or no role for the law in that process.’
(Shaw v. Wolf (1999), p. 268)Patmore and others (2002) takes the view that biological descent is almost impossible to disprove and so emphasis falls instead to self-identification and community recognition.Footnote 47 In effect, the second and third elements of the three-part test take the place of the first element, overriding the relevance of genetic descent. The tribunal sees Aboriginality as potentially all-pervasive, inevitably intertwined with white social structures and embedded in a social and cultural context.
3. A genetic future?
In the context of the ongoing controversy over who is Aboriginal in Tasmania, it is not surprising that genetic testing of identity began to look attractive to some. After Shaw v. Wolf (1999), some Aboriginal Tasmanians expressed interest in the possibility of DNA testing for Aboriginality, however, there was also hesitation: ‘the spectres of the past hover over this debate; no-one wants to return to a system of categorising Aborigines according to degrees of blood’ (Guilliatt, Reference Guilliatt2002, p. 22). In 2002 a private researcher and former forensic scientist, John Presser, associated with the University of Arizona, announced that he could test DNA for Aboriginality. A number of Tasmanians gave DNA tests to Mr Presser hoping to prove their Aboriginality with finality.Footnote 48 The DNA project lapsed after it was revealed that the University of Arizona believed the DNA had been donated to its evolutionary study, and said it had never intended testing for Aboriginality or sending results back to the participants (Australian Broadcasting Commission, 2002).
Patmore and others (2002) may seem to mark the end of a descent test for Tasmanian Aboriginals, leaching as it does almost any meaning from the idea of descent as biological or genetic. However, Patmore is a tribunal decision and holds comparatively small legal weight. The fact that Shaw v. Wolf (1999), and even Patmore, support the three-stage test in principle means that descent remains an element of proving Aboriginality that can be expanded again, just as it was contracted in Patmore. A case relating to Aboriginal lands illustrates this. Decided just before Patmore, In the Matter of Marianne Watson (2001)Footnote 49 considers eligibility for inclusion on the Aboriginal Land Council of Tasmania Electors Roll under a system that replicates the voting system for ATSIC. Here the court, faced with dubious archival links, family stories and a set of photographs of allegedly dark-skinned ancestors, decided that Ms Watson was not Aboriginal. Her attempts to link to an Aboriginal ancestor, the judge called ‘speculative in the extreme’ (In the Matter of Marianne Watson (2001), para. 6); her reporting of family stories was discounted because they were not told by ‘a known Aboriginal person’ (para. 8) and her acceptance into the Aboriginal community was based only on her ‘photographic material and the sincerity of her commitment’ (para. 8). Citing Shaw v. Wolf (1999) with approval, the judge returns to a strict idea of descent as actual biological descent requiring conventional evidence. In the face of shifting judicial notions of descent, genetic testing will no doubt continue to hold out for Tasmanian Aboriginals the promise of future status as indigenous before the law.
IV. Genetics and the boundaries of race
In the cases on defining Aboriginality, two conflicting approaches to racial identity emerge. On the one hand, Aboriginality is treated as if it is immutable, on the other, as if it does not exist as a defined category of race. In some of the cases, notably Gibbs v. Capewell (1995), the judges are saying that the gene is responsible for racial identity, that race can be measured and is definitive and immutable: at birth you either are or you are not an Aboriginal. On the other hand, Patmore and others (2002) treats Aboriginality as a category so loose that it has virtually no biological meaning and only takes on meaning through social context. I am terming these the narrow and the broad approach to genetic identity, and each has significance for analysing race and, in particular, whiteness.
A. The narrow genetic approach: race is genetically determined
In the narrow approach to identity, it is the gene, as neutral non-human actor, which ‘makes’ racial identity. This way of understanding the gene has been called ‘genetic fetishism’ (Haraway, Reference Haraway1997, pp. 141–8) and its results ‘genetic essentialism’ (Nelkin and Lindee, Reference Nelkin and Lindee1995, p. 2)Footnote 50 or ‘genetic determinism’. On this approach, human responsibility for the construction of race: the relationships, social ordering and history through which race acquires meaning, is purged. The effect is to decontextualise race, so that it stands alone as an intact category of identity.
The narrow approach does not reveal much about race: it is a matter of measurement rather than analysis. The narrow approach has been indirectly encouraged by universalising genetics: focusing on what it is to be ‘human’. Footnote 51 Discussion of the ‘human’ appears to transcend race, as Haraway (Reference Haraway1997, p. 214) writes: ‘[t]he human is the category that makes a luminous promise to transcend the rending trauma of the particular, especially the particular nonthing and haint called race.’
Universalising identity allows the context in which racial identity is shaped to fade into insignificance and leaves whiteness unexamined. This is in part because race is ignored, and in part because, when race is studied, the social invisibility of whiteness means that it is non-whites who are the objects of study. Genetics has continued in a long tradition of talking about the general and calling it human or the specific and calling it other.
A narrow genetic conception of identity has particular attraction to law because it allows for manageable, contained definitions and categories of identity. In some areas of law, for example those that rely on forensic evidence such as sexual assault cases or paternity determinations, genetic technologies have seemed to offer certainty of identification where before there was always some degree of doubt, however small (O’Connell, Reference O’connell2007). Race-based genetics is a seductive mechanism for analysing what is otherwise a complex and shifting area of social, political and cultural norms and it tends to re-assert itself consistently.Footnote 52
B. The broad genetic approach: race is a social construct
Race is now commonly accepted as a social construct rather than a scientific fact with an immutable set of biological characteristics (Australian Law Reform Commission, 2003, para. 36.42).Footnote 53 The statutes that refer to an ‘Aboriginal race’ have been criticised on these grounds:
‘Though possibly an improvement on “blood” quantum definitions, the utility of this [statutory] definition can still be questioned, not least of all on the grounds that there is no such thing as an Aboriginal race. Most scientists long ago stopped using the word “race”.’
(Australian Law Reform Commission, 2003, para. 36.15)Similarly, there are no identifiable Aboriginal genes, although some of the cases on Aboriginality refer to them (de Plevitz and Croft, Reference De plevitz and Croft2003).
Viewing race as a social construct, separable from biology, is in many ways an improvement on a narrow deterministic approach to genetics and race. The cases that treat Aboriginality as created within a particular social context and set of relations are able to read into Aboriginal identity crucial contextual issues such as the impact of past discriminatory practices in the assertion of Aboriginality over time.
On the other hand, the assertion that race is illusory, even if intended to relate only to its genetic meaning, can be used to render it invisible. This is, in part, because race is still intertwined with the language and ideas of biology and genetics, and asserting their separation does not necessarily lead to greater clarity, but to a schizophrenic approach in which race is spoken of as biological and non-biological in turn.
In cases on defining Aboriginality, judges state that they do not intend to take a scientific approach to understanding race and that statutory definitions relating to race have a ‘wide and non-technical meaning’ (Shaw v. Wolf, 1999, p. 209). Yet they are clearly torn between understanding race as a term that is meaningless outside of its social context and one that is clearly biological or genetic, and therefore immutable. As Haraway (Reference Haraway1997, p. 213) writes of the word ‘race’:
‘The meanings of the word are unstable and protean; the status of the word’s referent has wobbled – and still wobbles – from being considered real and rooted in the natural, physical body to being considered illusory and utterly socially constructed.’
Judges are not unique in their schizophrenic approach to race; it continues to be referred to as a scientific fact in general public language and in scientific circles even as this usage is acknowledged as incorrect.
‘Race. . .has no meaning as a biological concept – but it is constantly reaffirmed as a biological “fact” in the way that scientists make reference to it.’
(Lawrence, Reference Lawrence, Weir, Lawrence and Fales1994, pp. 233–4)Paradoxically, asserting the lack of any biological basis to race can leave gaps for deterministic concepts of race to reassert themselves. It can reduce discussion of the significance of genetics to a one-dimensional debate over whether there is or is not any genetic basis for racial characteristics.
C. Blurring the boundaries of race
Both the narrow and broad approaches to genetic identity have a tendency to render race invisible. Instead of shifting between perceptions of race as genetically determined and socially constructed, a more useful approach is to consider how we invest the gene with meanings, including racial meanings, both broad and narrow. Genetics disrupts settled ideas about identity and invites new ways of thinking about what we consider ‘natural’, including racial identity.Footnote 54 Genetics, I would argue, has the potential to transform the way that we think about race in a number of ways: it encourages thinking about identity as malleable; it expands racial categories and it disrupts them by ‘polluting’ any clear demarcations between them.
The gene is invested with more significance than a simple measure of identity. The fact that genes are so often referred to as the ‘building blocks’ of life gives a clue to their significance for us; like children exploring a new medium, we are manipulating them to effect new results, build as yet unknown bodies and biological forms. Genetics, therefore, also inevitably points to the constructability of identity, the fact that identity is not and cannot be immutable.
Contemporary thinking on genetics expands racial categories and, in doing so, disrupts them. If the DNA of a ‘white’ college applicant can be tested to reveal that she has a trace of genetic material identifying her origins as Asian, what does that say about the stability of ‘whiteness’, or indeed ‘Asian-ness’, as a category? (Harmon, Reference Harmon2006). Genetics confuses and blurs racial categorisations. Further, genetics suggests the possibility that everyone has within him or her a connection to the racial ‘other’. Despite the fact that genetics has been traditionally associated with purity through eugenic theories, on this view genetics is a polluter of identity.
The disruptive capacities of genetics illuminate contemporary thinking about race. Rather than simply asserting that genetics is all or nothing of racial identity it forces consideration of exactly what has been included and what banished from perceptions of race. This holds particular promise for the critical examination of concepts of whiteness, which otherwise has the capacity to persist unexamined.
V. Conclusion: the ghosts come home
In the cases on Aboriginality, the respondents are forced to prove their existence before a court that struggles to see them. They are ghosts within the legal structure of the case: they do not get to define themselves and they face the possibility of being declared to not exist in the bodily reality they inhabit. The respondents are barely embodied, barely present: needing excesses of evidence to prove they exist at all. Ghost-like, their voices are not heard except as rare snatches of language, they are spoken of but do not speak. Yet, out of the absences of the past, the events not recorded and the missing ancestors, they do sometimes manage to summon a present indigenous legal identity.
Whiteness is another ghost hovering in the background of the cases. Being white, and what that means, how it might be defined, is a crucial element of the cases but shifts in and out of consciousness. Shaw v. Wolf (1999) acknowledges the role of white perceptions of Aboriginality, expressed through shifts in government policy and oppressive social conditions, in shaping Aboriginal identity. Gibbs v. Capewell (1995) treats whiteness as irrelevant. All of the cases, when they do acknowledge whiteness see its impact on Aboriginal identity but do not acknowledge any corresponding impact on the meaning of being white in Australia.
As with the Australian cases on Aboriginality, those involved in managing the HGDP did not see themselves as participating in a pre-existing or constitutive relationship with indigenous peoples. They also did not see their actions in applying the ‘neutral’ science of genetics as potentially disempowering indigenous groups by inserting their own definitions of them as a group and over-ruling their own right of self-definition (Reardon, Reference Reardon2001, p. 377). They did not acknowledge that they were creating racial identities that were shaped by their own ideas of race (culturally and socially embedded) rather than simply choosing pre-existing groups, awaiting study. As Reardon (Reference Reardon2001, p. 377) points out, researchers assumed that genetic groups would exactly correlate to social and cultural groups.
‘The role that Diversity Project organizers might play in constructing the identity of groups in the social order as they defined objects and subjects of research, however, proved difficult for organizers to see. Drafters did not believe they were constructing groups, but rather only attempting to sample already existing groups in a morally responsible way. They assumed that experts could identify these already existing groups.’
Researchers preferred to see their relationship with the indigenous groups that would be the focus of their study as ‘pure’: non-exploitative because well intentioned and existing without history or context, or, at least, a history and context in which they were not personally implicated. They were therefore free to expect altruism and neutrality (if not gratitude) from their potential subjects.
Yet indigenous people are much more likely than whites to experience loss, sometimes quite terrible loss, through their interaction with white law and science.Footnote 55 The ‘promise’ of genetic identification, that it will arm some indigenous groups against white law by providing them with the means to prove their own identity officially as indigenous, can just as easily take away this external identification as bestow it. The ‘promise’ is to return to indigenous peoples what they already have – an identity – outside of white institutions.
When the Aboriginal people of the Huon valley called themselves ‘we who are not here’, they drew attention to their real existence and the attempted denial of that existence by those who did not believe there was enough proof to substantiate it. Law and genetics are called in, in such cases, to furnish the proof or to determine whether the evidence is sufficient.
In contemporary law, genetic technologies are the latest tool in carving out racial identities that selectively obscure. Genetics is a disruptive discipline: ultimately its message is that all identities are constructible and that biology is not set in immutable forms. For white people, this dispels the comforting belief that race is somehow part of the natural order, scientifically or genetically determined, and reveals that the powers they inherit as a consequence of their particular embodiment are contingent. Uncomfortable as this knowledge might be, it also offers the possibility of welcoming home the aspects of their raced selves that white people are otherwise able to banish.
