Constructing Law, Space, and their Subjects:
Realities of Law and Governance among the North American Indians and Australian Aboriginals

The Living Law of Aboriginal Communities:
The Murngin and Injurious Conduct

Australian Aboriginals also had distinctive and complex institutions and practices for handling disputes. For an example of carefully structured dispute resolution in the wake of an inter-clan killing with an Australian aboriginal tribe, consider the following from W. Lloyd Warner, A Black Civilization: A Social Study of an Australian Tribe (Chicago: University of Chicago Press, 1957), pp. 174-177.

Makarata

The makarata is a ceremonial peacemaking fight. It is a kind of general duel and partial ordeal which allows the aggrieved parties to vent their feelings by throwing spears at their enemies or by seeing the latter's blood run in expiation.

Frequently the makarata does not follow the ideal pattern; instead of providing a peacemaking mechanism, it produces only another battle in the interminable blood feud of the clans.

When sufficient time has elapsed after an injury or death of a member for the clan's emotions to calm, the men send a message to their enemies saying they are ready for a makarata. The other side usually agrees to enter into this peacemaking ceremony, although there is always suspicion of treachery. The injured group always sends the invitation, and the other must wait for them to decide when they wish to have it. Frequently makarata are held after some of the totemic ceremonies have taken place, since it is at this time that most of the clans will be present. When the warriors of the injured clan or clans arrive on the dueling ground they are covered with white clay. They dance in, singing a song which is descriptive of the water of their totemic well. The other side has also painted itself. The two sides stand a little more than spear-throwing distance apart, and each is so situated that it has a mangrove jungle back of it for protection in case the makarata becomes a real fight and it is necessary to take cover. The clan which considers itself injured performs the dance connected with its chief totem. It is of the garma or non-sacred variety. The Warumeri clan, for instance, would dance the garawark (mythological fish) totemic dance; the Djirin clan would perform its shark dance. The challenging group dances over to its antagonists, stops, and without further ceremony walks back to its own side. After the men have reformed their ranks, their opponents dance toward them, using the latter's totemic dance for this military ritual. They return to their own side and reform their line to make ready for the actual duel.

The men who are supposed to have "pushed" the killers then start running in a zigzag in the middle of the field, facing their opponents. They are accompanied by two close relatives who are also near kin of the other side. The function of the latter runners is to deter the aggrieved clan from throwing spears with too deadly an intent for fear of hitting their kin, and to help knock down spears which might hit the "pushers." The "pushers" are made a target for spears whose stone heads have been removed. Every member of the clan or clans which feels itself injured throws at least once at the runners. When an individual's turn to throw arrives he advances from the group and moves toward the runners. If he feels very strongly he continues throwing spears until he has chased the runners into the jungle. This action is repeated by the more indigent members of the offended clan three or four times. The injured clan curses the members of the other group; the offending group cannot reply, for this is supposed to add additional insult; they must run and say nothing. Finally, when their emotions have subsided to a considerable extent, one of the older men of the offended group says that they have had enough and the spear throwing stops.

After the "pushers," the actual killers run. The spear head is not removed from the shaft; the throwers continue hurling their spears, at first as a group and finally as individuals, until they have exhausted their emotions. While all this is taking place, the old men of both sides walk back and forth from one group to the other, telling the throwers to be careful and not kill or hurt anyone. The offending clan's old men ask the younger men to be quiet and not to become angry, and when they hear insults thrown at them not to reply or throw spears since they are in the wrong. When the old men of the injured clan feel that they have sated their anger as a group they call out to the young men to stop, and each man then throws singly at the killers. He may throw as long as he pleases.

When this part of the ceremony has been completed, the whole offending group dances up to the other, and one of the latter jabs a spear through the thighs of the killers. If this happens it means that no further retaliatory action will be taken. The killers can feel free to go into the country of their enemies without fear of injury. If only a slight wound is made the offenders know they are not forgiven and the truce is only temporary. Sometimes no wound is made at all. This acts as a direct statement of the offended clan's intention to wreak vengeance on the other side.

After the wound has been made the two sides dance together as one group to prove their feeling of solidarity and to express ritually that they are not openly warring groups, but one people. They also perform the usual water dance.

The above is the idealized form of the makarata. If all goes well, this procedure is followed through until the end, and the makarata's purpose is fulfilled. The following things can happen to turn the makarata into a real fight: (1) the old men may not have enough power to keep their young men in control; (2) the offending side may start swearing or throwing spears, which immediately turns the whole performance into a fight; (3) one of the runners may be badly wounded, which is likely to stimulate his clan members to attack the other side; (4) treachery may be resorted to; (5) the accidental wounding of an outsider may sometimes result; and (6) a member of either side may deliberately throw a spear into the other group because he is anxious to start a general fight.

. . . . . .

Wergild

The conception of wergild is present among the Murngin, but it is very poorly developed and seldom solves the problem of terminating a feud. Whenever a war is in actual progress there is always talk by the offending party of sending food, which usually consists of palm nut bread, to the injured group. The person who has inflicted the injury is the one who is supposed to send it to the nearest relative of the deceased or to the man who has been wounded. Tobacco is also a favourite article sent for the wergild. If the man who receives the bread eats it or if he smokes the tobacco, it is a sign that he has accepted the payment, that the blood feud is terminated, and there will be no further retaliation as far as he is concerned. Every member of the clan, as well as the near kin of the other clans, must also eat of this food or smoke the tobacco to make the wergild effective. There is almost always an impossibility and as a consequence the wergild is hardly ever a success. The chief basis of its ineffectiveness is that the solidarity of the clan group is interfered with by the operation of the kinship system; if clan members alone were concerned, it is likely that all frequently could and would enter into the ritual of eating the bread or smoking the tobacco.

Below is an engraving of an Aboriginal Trial.

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QUESTION

Based on the descriptions of traditional justice systems in the excerpts from Foster and Warner, describe the features of Aboriginal justice in the two aboriginal communities, as constrasted with those of British and colonial justice. Comment on the process of speaking of the law of others as presented through historical and anthropological description.

READING

Richard Broome, Aboriginal Australians 2nd.Ed. (Sydney: Allen & Unwin, 1994), pp. 9-21 FTP ~ HTML Arthur J. Ray, I Have Lived Here Since The World Began: An Illustrated History Of Canada's Native People (Toronto: Lester Publishing, 1996), pp. 22 - 37 FTP ~ HTML

NARRATIVE SOURCES

• Arthur J. Ray, I Have Lived Here Since The World Began: An Illustrated History Of Canada's Native People (Toronto: Lester Publishing, 1996)

• Nicholas Blomley, Law, Space and the Geographies of Power (New York: The Guilford Press, 1994)

• Hugh Brody, Maps and Dreams (Vancouver: Douglas and McIntyre, 1981)

• Paul Carter, The Road to Botany Bay (London: Faber and Faber, 1987)

• Carl Tracie, "Toil and Peaceful Life": Doukhobor Village Settlement in Saskatchewan 1899-1918 (Regina: Canadian Plains Research Centre, University of Regina: 1996)

• Bain Attwood, The Making of the Aborigines (Sydney: Allen & Unwin, 1989)

• Patricia Olive Dickason, Canada's First Nations (Norman: University of Oklahoma Press, 1992)

• Hamar Foster, 'The Queen's Law Is Better Than Yours': International Homicide in Early British Columbia in Phillips, Loo and Lewthwaite, eds., Crime and Criminal Justice (Toronto: The Osgoode Society, 1994)

• Daniel Francis, The Imaginary Indian (Vancouver: Arsenal Pulp Press, 1992)

• Karl N. Llewellyn and E. Adamson Hoebel, The Cheyenne Way (Norman: University of Oklahoma Press, 1941)

• J.R. Miller, Skyscrapers hide the heavens (Toronto: University of Toronto Press, 1989)

• Deborah Bird Rose, Nourishing Terrains (Canberra, Australian Heritage Commission, 1996)

• W. Lloyd Warner, A Black Civlization: A Social Study of an Australian Tribe (Chicago: University of Chicago Press, 1957)

• David Malouf, Remembering Babylon (New York: Pantheon Books, 1993)

• McRae, Nettheim and Beacroft, Indigenous Legal Issues: Commentary and Material, 2d Ed. (Sydney, LBC, 1997)

• Simon Ryan, The Cartographic Eye: How Explorers Saw Australia (Cambridge, CUP, 1996)