University of Notre Dame Australia ResearchOnline@ND Theses 2008 Too white to be regarded as Aborigines: An historical analysis of policies for the protection of Aborigines and the assimilation of Aborigines of mixed descent, and the role of Chief Protectors of Aborigines in the formulation and implementation of those policies, in Western Australia from 1898 to 1940 Derrick Tomlinson University of Notre Dame Australia Follow this and additional works at: http://researchonline.nd.edu.au/theses Part of the Arts and Humanities Commons COMMONWEALTH OF AUSTRALIA Copyright Regulations 1969 WARNING The am terial in this communication may be subject to copyright under the Act. Any further copying or communication of this material by you may be the subject of copyright protection under the Act. Do not remove this notice. Publication Details Tomlinson, D. (2008). Too white to be regarded as Aborigines: An historical analysis of policies for the protection of Aborigines and the assimilation of Aborigines of mixed descent, and the role of Chief Protectors of Aborigines in the formulation and implementation of those policies, in Western Australia from 1898 to 1940 (Doctor of Philosophy (PhD)). University of Notre Dame Australia. http://researchonline.nd.edu.au/theses/7 This dissertation/thesis is brought to you by ResearchOnline@ND. It has been accepted for inclusion in Theses by an authorized administrator of ResearchOnline@ND. For more information, please contact [email protected]. Chapter Two WHO IS AN ABORIGINE? Legislative antecedents of policy for Aborigines Early colonial legislation did not define who was an Aborigine. That was a self-evident monochromatic distinction of skin colour: Aborigines were black natives of the territory and white Europeans were the colonisers. Later legislation for the protection of Aborigines made different distinctions. Laws regulating the employment of Aborigines, protecting Aboriginal womenfrom exploitation as sexual chattels, andfor fair treatment of Aborigines inthe justice system, describedhow Aborigines were tobe treateddifferently from others. Consequently, it became necessary todecide at law whowas anAborigine. The black native − white coloniser dichotomy nolonger was adequate. Definitions of Aboriginality that were revisedprogressively during the period considered in this thesis incorporated matrilineal descent, notions of blood quantum, habituation and cohort relationships to distinguish among Aborigines and non Aborigines of Aboriginal descent. At each stage, the definition of whowas anAborigine was made more inclusive of people of mixed racial heritage. It was a process of exclusion by inclusion. Witheachchange, more people of mixeddescent were brought withinthe ambit of protective laws andexcludedfrom legal protections whichotherwise wouldhave beentheirs by commonlawright. If their Europeanrather thantheir Indigenous genealogy hadbeen acknowledgedinthe relevant statutes, Aborigines might have had different opportunities. As Aborigines they were progressively deniedrights tochoose or toleave, at their owndecision, their places of work; to move unhindered though any public locality; to choose their places of residence; to consume alcoholicbeverages;tobeeducatedinstateschools; andtomarryortohavesexualrelationswith partners of their choice. Common law rights gradually were extinguished for Aborigines and substitutedwithlegalstricturesintended,ostensiblyatleast,toprotectandpreservetheirrace. This chapter will trace changes in how and upon whom the denomination ‘Aborigine’ was conferredduring the colonial periodandthe early twentiethcentury uptoandincluding the passageofthe Aborigines Act Amendment Act 1911. ThedecisionaboutwhowasanAborigine was a legal construct modifiedby legislationandlegal opinionfrom time to time toinclude some personsof Indigenousdescent,butnotall.Inconsistenciesandinadequaciesinthedefinition 57 ‘Too White to be Regarded as Aborigines’ Aboriginal Men, Carrolup, c.1917 . J.S. Battye Library, A.O. Neville Pictorial Collection, 67047P. 58 Chapter Two: Who is an Aborigine? decided in 1886 were addressed by legislative action in 1905 andagain 1911, but while each amendment included more people as Aborigines, each also contained its own anomalies. At everystagethelegal interpretationof who wasan Aborigine proveddeficient. The starting point of this examination of thelegislative concept of Aborigine is the Report from the Select Committee on Aborigines (British Settlements), presented to the House of Commons in June 1837. The select committee depicted Aborigines in colonies, ‘on the eastern, western and southern shores of New Holland’ as ‘probably the least instructed part of the human race in all parts of social life’ who lacked ‘even the rudest form of civil polity’ andwhose claims to land, ‘whether as sovereigns or proprietors of the soil’, hadbeen disregarded. 1 Their landwas taken from them ‘without the assertion of any other title than that of superior force’. The committee proposed that as Crown subjects Aborigines were entitled to protection by the Crown of their rights to life andproperty. It will be argued here that those sentiments were at odds with the more pragmatic stance of some influential colonials unsympathetic to the human conditions of Aborigines. Nevertheless, commitments to the protection of Aborigines were translated into colonial and, later, state laws. It became increasingly necessary, therefore, to establish at law who wasan Aborigine. The Select Committee on Aborigines, 1837 British legislative authority prevailed in Western Australia from the proclamation of the Swan River Colony in June 1829 until the proclamation of the new constitution in 1890. 2 As the instrument of policy regarding Aborigines, it persisted for a further fifteen years until passage of the Aborigines Act 1905 when the Imperial Government surrendered its reserve power over Aboriginal affairs. For much of that time policy for Aborigines in the Australian colonies reflected recommendations of the House of Commons select committee appointed in 1835 to consider measures necessary to protect the rights of ‘Native inhabitants of Countries where British settlements are made’ andto bring them to civilisation andChristianity. 3 A first report was tabled in February 1836 andthe secondandfinal report in February 1837. The House of Commons adopted themandtheir recommendations became tenets of British colonial policy for theremainderofthenineteenthcentury. The members of the committee included some of the most ardent domestic reformists 1 Report for the Select Committee on Aborigines , 1837, p.82. 2 In matters of international relations, British authority prevailed until the passage of the Statute of Westminster in 1932. Other statutes and common law prevailed until expressly repealed or replaced by relevant state and, after 1901, Commonwealth laws. 3 Report from the Select Committee on Aborigines (British Settlements) Together with Minutes of Evidence, Ordered by the House of Commons to be printed, 5 August 1836. Reports and papers; v. 438, Paper No. 538. 59 ‘Too White to be Regarded as Aborigines’ andadvocates against slavery in the House of Commons andtheir recommendations echoed the evangelical ideals of the Anti-Slavery Society. 4 Several of the principal witnesses before the committee were Anglicanor Protestant clergy in or recently returned from colonial service in the Americas, Africa and New South Wales. Their most appealing sentiments and persuasive opinions were mirrored in the select committee’s reports, even to the extent that principal witnesses from three missionary societies, Mr Coates, Secretary of the Church Mission Society, Mr Beecham, Secretary of the Wesleyan Missionary Society, andRev. W. Ellis, Secretary of the of the London Missionary Society, not only gave evidence which was cited at length at different places in the report, but also were recalled to the committee to recordtheir concurrence with its findings. 5 Three propositions andtheir attendant recommendations pressed by the committee are pertinent to this thesis. The first was a conviction that Britain, andall British subjects, hada duty to treat the natives ofcolonised lands withcompassionate protection, ‘to do to the inhabitants of other lands, whether enlightened or not, as we shouldin similar circumstances desire to be done by’. 6 That extended to acknowledging the incontrovertible right of natives to their own soil, ‘a plain andsacred right’, which the Committee observed ‘seems not to have been understood’ in the colonies. 7 Colonists acknowledged it, the committee suggested, only in the abstract and disregarded it in material fact. They assumed proprietorial rights over lands they occupied and punished as aggressors any natives disposed to live in their own country, ‘driven back into the interiorasifthey weredogsorkangaroos’. 8 The secondproposition gave authoritative voice to a then popularly-held presumption that when a superior peoples colonised territories inhabited by lesser peoples, or ‘savages’, the native inhabitants inevitably passed into decline or were absorbed by the invaders. Some thirty- five years previously, Malthus had essayed that émigrés who invaded territories exterminated those who opposed them. He posited the ‘prodigious waste of human life occasioned by this perpetualstruggleforroomandfood’asanunavoidableprincipleofpopulation. 9 The select committee was similarly fatalistic in its opinion of the future of Aborigines in the colonised territories. The evidence it reported suggested