Abstract
When ‘Jenny Lind’ was abducted at gunpoint in 1898 from the pastoral station where she was employed as a cook, colonial officials entered into a protracted debate about how to achieve her return. Finding no legal avenue through which to prosecute her abductor, the legal solution was to prosecute Jenny herself for absconding from her employment. Her case speaks to a broader set of questions about the vulnerability of Indigenous women in colonial industries, and to the uncertain place they occupied at the intersection of raced and gendered labour relations. This chapter considers these questions by exploring the law’s limited capacity to provide protection to Indigenous women workers, in an era when statutory powers of ‘Aboriginal protection’ were becoming normative across Australia.
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Notes
- 1.
Frank Wittenoom to Chief Protector Henry Prinsep, 22 August 1898: Acc 255, 1898/1175, State Records Office of Western Australia, Perth (hereafter SROWA).
- 2.
The statutory age of Aboriginal protection began in Australia with Victoria’s Aborigines Protection Act of 1869. In New South Wales, an Aborigines Protection Board was established in 1883 under the auspices of the Department of Police, and gained statutory authority with the Aborigines Protection Act of 1909. Equivalent Acts for the ‘protection’ and management of Indigenous people were passed in Western Australia in 1886, in Queensland in 1897, in the Northern Territory in 1910, in South Australia in 1911, and in Tasmania in 1912.
- 3.
For instance, Laura Ann Stoler, Capitalism and Confrontation in Sumatra’s Plantation Belt, 1870–1979 (Ann Arbor: University of Michigan Press, 1985); Ian Keen, ed. Indigenous Participation in Australian Economies: Historical and Anthropological Perspectives (Canberra: Australian National University Press, 2010); Victoria Haskins, Matron and Maids: Regulating Indian Domestic Service in Tucson, 1914–1935 (Tucson: University of Arizona Press, 2012); Victoria Haskins and Claire Lowrie, eds. Colonization and Domestic Service: Historical and Contemporary Perspectives (London: Routledge, 2015); Claire Lowrie, Masters and Servants: Cultures of Empire in the Tropics (Manchester: Manchester University Press, 2016).
- 4.
For instance, Regina Ganter, Mixed Relations: Asian-Aboriginal Contact in North Australia (Perth: University of Western Australia Press, 2006); Katherine Ellinghaus, ‘Absorbing the Aboriginal Problem: Controlling Marriage in Australia in the Late Nineteenth and Early Twentieth Century’, Aboriginal History 27 (2003), 185–209.
- 5.
On questions of agency and consent in Australia’s histories of colonial conquest, see for instance Lyndall Ryan, ‘The Struggle for Recognition: Part-Aborigines in Tasmania in the Nineteenth Century’, Aboriginal History 1, no. 1 (1977), 27–52; Ann McGrath, ‘Black Velvet: Aboriginal Women and Their Relations with White Men in the NT, 1910–40’ in Kay Daniels, ed. So Much Hard Work: Women and Prostitution in Australia (Sydney: Fontana, 1984); Kay Merry, ‘The Cross-cultural Relationships Between the Sealers and the Tasmanian Aboriginal Women at Bass Strait and Kangaroo Island in the Early 19th Century’, Counterpoints 3, no. 1 (2003), 80–88; Ann McGrath, ‘Consent, Marriage and Colonialism: Indigenous Australian Women and Coloniser Marriages’, Journal of Colonialism & Colonial History 6, no. 3 (2005); Victoria Haskins and John Maynard, ‘Sex, Race and Power: Aboriginal Men and White Women in Australian History’, Australian Historical Studies 126 (2005), 191–216; Ruth Balint, ‘Aboriginal Women and Asian Men: A Maritime History of Color in White Australia’, Signs 37, no. 3 (2012), 544–554; Karen Hughes, ‘Micro-Histories and Things that Matter: Opening Spaces of Possibility in Ngarrindjeri Country’, Australian Feminist Studies 27, no. 73 (2012); Liz Conor, ‘“Black Velvet” and “Purple Indignation”: Print Responses to Japanese “Poaching” of Aboriginal Women’, Aboriginal History 37 (2013); Victoria Haskins, ‘“Down in the Gully and Just Outside the Garden Walk”: White Women and the Sexual Abuse of Aboriginal Women on a Colonial Australian Frontier’, History Australia 10, no. 1 (2013), 11–33. Larissa Behrendt makes the point that even when colonial interracial relationships were consensual, they occurred within a wider context of ‘frontier and sexual violence’. Larissa Behrendt, ‘Consent in a (Neo)Colonial Society: Aboriginal Women as Sexual and Legal “Other”’, Australian Feminist Studies 15, no. 33 (2000), 355.
- 6.
Ann McGrath points out that across colonial Australia, many frontier policemen cohabited with Indigenous women under the radar of official sightlines (McGrath, ‘Black Velvet’, 269). In a case from the northwest in the late 1860s, Police Constable Albert Francisco was investigated after he and his Indigenous tracker ‘Johnny’ forcibly took two Indigenous women for sex, and Francisco subsequently shot and wounded the husband of one of the women, Toonamarra, when he came to retrieve his wife. The local resident magistrate, Robert Scholl, overlooked Francisco’s actions in this instance, but acknowledged to the Colonial Secretary that ‘interference’ with Indigenous women constituted a major cause of local conflict between white men and Indigenous people. Scholl to Colonial Secretary, 25 January 1869: Acc. 36, vol. 646 (1868–1869), SROWA. On the legal difficulty of prosecuting such abuses, see for instance ‘Memorandum of Attorney General H.H. Hocking’, Part V of Despatches and Other Papers Relating to Transactions Arising out of the Homicide and Other Alleged Outrages on Aboriginal Natives (Perth: Government Printer, 1873). On colonial humanitarian interventions into settler men’s relationship to Indigenous women, see Penelope Edmonds, ‘Collecting Loorerryminer’s “Testimony”: Aboriginal Women, Sealers and Quaker Humanitarian Anti-Slavery Thought and Action in the Bass Strait Islands’, Australian Historical Studies 45, no. 1 (2014), 13–33.
- 7.
A.E. Raddock to George Thompson, 10 May 1898: Acc 255, 1898/1175, SROWA.
- 8.
For instance, letter to the Travelling Inspector of Aborigines George Olivey, 4 January 1901: Acc 255, 1900/51, SROWA; report of Corporal W. Feely, 15 March 1903, Acc 430, 1903/123; letter to Prinsep, 30 March 1905: Acc 255, 1905/177, SROWA.
- 9.
Wittenoom to Prinsep, 22 August 1898: Acc 255, 1898/1175, SROWA. On the politics of Indigenous people ‘inside’ and ‘outside’ the pastoral sector, see Tim Rowse, ‘Were You Ever Savages?; Aboriginal Insiders and Pastoralists’ Patronage’, Oceania 58, no. 2 (1987).
- 10.
On the position of Indigenous people in Western Australian colonial economies see, for instance, Paul Hasluck, Black Australians: A Survey of Native Policy in Western Australia 1829–1897, 2nd ed. (Melbourne: Melbourne University Press, 1970); Peter Biskup, Not Slaves, Not Citizens: The Aboriginal Problem in Western Australia 1898–1954 (Brisbane: University of Queensland Press, 1973); R.H.W. Reece and Tom Stannage, eds. European–Aboriginal Relations in Western Australian History (Perth: Studies in Western Australian History, 1984); Penelope Hetherington, Settlers, Servants and Slaves: Aboriginal and European Children in Nineteenth-Century Western Australia (Perth: University of Western Australia Press, 2002).
- 11.
This likelihood is suggested by Wittenoom’s confirmation that Jenny was raised on Boolardy station, although it is also possible that she was the child of an Indigenous worker who came or was brought to the station from elsewhere. On the longer trajectory of Indigenous people’s central place in the pastoral economy in other parts of Australia, see Ann McGrath, Born in the Cattle: Aborigines in Cattle Country (Sydney: Allen and Unwin, 1987); Dawn May, Aboriginal Labour and the Cattle Industry: Queensland from White Settlement to the Present (Cambridge: Cambridge University Press, 2009).
- 12.
Wendy Birman and G.C. Bolton, ‘Frederick Francis Wittenoom (1855–1939)’, Dictionary of Australian Biography, http://adb.anu.edu.au/biography/wittenoom-frederick-francis-frank-9292
- 13.
On the relationship between intimacy and violence on colonial frontiers see, for instance, Henry Reynolds, With the White People (Melbourne: Penguin, 1990); Lynette Russell, ed. Colonial Frontiers: Indigenous–European Encounters in Settler Societies (Manchester: Manchester University Press, 2001); Penelope Edmonds, Urbanizing Frontiers: Indigenous Peoples and Settlers in Nineteenth Century Pacific Rim Cities (Vancouver: UBC Press, 2010).
- 14.
Comments of Frank Wittenoom reported by Magistrate Robert Fairbairn in Despatches and Other Papers Relating to Transactions Arising Out of the Homicide and Other Alleged Outrages on Aboriginal Natives (Perth: Government Printer, 1873); Instructions to and Reports from the Resident Magistrate Despatched by Direction of His Excellency on Special Duty to the Murchison and Gascoyne Districts (the ‘Fairbairn Report’) (Perth: Government Printer, 1882), 8 July 1882.
- 15.
Rowse, ‘Were You Ever Savages?’, 97.
- 16.
Aborigines Act (61 Vict no 5) 1897 (WA). This Act abolished the short-lived Aborigines Protection Board that had been established on the authority of the colony’s earlier Aborigines Protection Act (50 Vict no 25) 1886 (WA).
- 17.
Noel Olive, Enough is Enough: A History of the Pilbara Mob (Fremantle: Fremantle Arts Centre Press), 73–4.
- 18.
Pearl Shell Fishery Act (34 Vic. No 13) 1871 (WA).
- 19.
Pearl Shell Fishery Regulation Act (37 Vic. No 11) 1873 (WA).
- 20.
Pearl Shell and Bȇche-de-mer Fishery Act (45 Vic. No 2) 1881 (Qld) and Native Labourers Protection Act (48 Vic. No. 20) 1884 (Qld).
- 21.
N.A. Loos, ‘Queensland’s Kidnapping Act: The Native Labourers Protection Act of 1884’, Aboriginal History 4 (1989), 150.
- 22.
Resident Magistrate Laurence to the Colonial Secretary, 3 July 1884: Acc 388, 2815/84, SROWA; report of Constable Payne, Acc 430, 1887/26, SROWA.
- 23.
Resident Magistrate Scholl (Roebourne) to the Colonial Secretary, 1 June 1871: Acc 36, vol. 646 (1871), SROWA.
- 24.
Sections 18 to 31, Aborigines Protection Act (50 Vict no 25) 1886 (WA).
- 25.
The ‘Fairbairn Report’ (1873); Instructions to and Reports from the Resident Magistrate Despatched by Direction of His Excellency on Special Duty to the Murchison and Gascoyne Districts (the ‘Fairbairn Report’) (Perth: Government Printer, 1882); Legislative Council Papers Respecting the Treatment of Aboriginal Natives in WA (Perth: Government Printer, 1886).
- 26.
Reverend J.B. Gribble, Dark Deeds in a Sunny Land; or Blacks and Whites in North-West Australia (Perth: Stirling Bros., 1886); ‘Investigations into the allegations of Reverend Gribble’: Acc 388, items 6–32, SROWA.
- 27.
‘Mr Gribble Again’, Eastern Districts Chronicle, 6 November 1886, 4; correspondence of Reverend Gribble to Frederick Chesson: Aborigines’ Protection Society correspondence files, March 1886–January 1887, MSS British Empire S22 G97, Weston Library (former Rhodes House collection), Oxford.
- 28.
The colony’s Legislative Council was particularly vocal in arguing that the Aborigines Protection Board was largely ineffective; but this was unsurprising, given that its members were heavily represented by the wealthy pastoral industry. See Western Australian Parliamentary Debates (Perth: Government Printer, 1888), 343–346.
- 29.
Prinsep to Secretary of the Law Department William Sayer, 23 August 1898, 255, 1898/1175, SROWA.
- 30.
Aborigines Act (5 Edw. VII No 1) 1905 (WA).
- 31.
Act to Prevent the Enticing Away of Aboriginal Girls from School or Service (8 Vic. No 6) 1844 (WA); Prinsep to Sayer, 23 August 1898, 255, 1898/1175, SROWA.
- 32.
Sayer to Prinsep, 25 August 1898, Acc 255, 1898/1175, SROWA.
- 33.
Prinsep to Wittenoom, 29 August 1898, and Wittenoom to Prinsep, 31 August 1898, Acc 255, 1898/1175, SROWA.
- 34.
The historical record suggests that the prosecution of Indigenous absconders was pursued even in cases where the workers were the wronged parties. In an example from the pearling sector, where forcible indentured labour was a known problem, Dugalgarry was ‘sold’ for £10 to a pearler and ran away because he refused to dive. He was sentenced by three local justices of the peace to two months’ imprisonment with hard labour. Acc 527, 1886/4569, SROWA. In another case, ‘Henry’ left his employment to seek the return of his wife, who had been stolen by a white man. He was sentenced to one month’s hard labour. Acc 527, 1888/236, SROWA.
- 35.
David Roberts, ‘A “Change of Place”: Illegal Movement on the Bathurst Frontier, 1822–1825’, Journal of Australian Colonial History, 7 (2005), 97–122.
- 36.
Section 44, Aborigines Protection Act (50 Vic. No 25) 1886 (WA).
- 37.
In an early and unusual instance of an Indigenous servant using Masters and Servants legislation in Western Australia, a case was successfully brought by Mooyan against his employer for non-payment of wages in 1843. The Inquirer, 5 April 1843. On the regular use of the courts by Chinese to prosecute abuses of settler employers in the late colonial northwest, see for instance the Wyndham Courthouse Deposition Book, 1888–1895: Acc 742/1, and Roebourne Police Court Proceedings, 1893, Acc 913/15, SROWA.
- 38.
Sometimes Justices of the Peace, the very officials who adjudicated Indigenous cases, were themselves the worst offenders of abuses against their own Indigenous servants. ‘Ill-treating a Native: A Magistrate Fined’, Western Mail, 10 February 1899; ‘Ill-treatment of Natives’, Western Mail, 3 March 1899.
- 39.
Successive iterations of Masters and Servants legislation in Western Australia were An Act to provide a summary remedy in certain cases of Breach of Contract (6 Vic. No 5) 1842; Masters & Servants Act (Amended) (46 Vic. No 11) 1882; Masters & Servants Act (Amended) (50 Vic. No 20) 1886; Masters & Servants Act (Amended) (55 Vic. No 28) 1892.
- 40.
Minute Paper on ‘Arrest of Natives under Sec 44 of the Aboriginal Protection Act’, 17 May 1887, Acc 527, 1887/1967.
- 41.
Aborigines Protection Act (Amended) (55 Vic. No 25) 1892 (WA).
- 42.
Attorney General Alfred Hensman to the Colonial Secretary, 9 February 1886: Acc 527, 1886/542, SROWA.
- 43.
Resident Magistrate Edward Angelo to the Colonial Secretary, 6 April 1886: Acc 527, 1886/542 SROWA.
- 44.
Reports of Olivey to Prinsep, 28 December 1899–4 March 1900: Acc 255, 51/1900, SROWA.
- 45.
Wittenoom to Prinsep, 8 September 1898, Acc 255, 1898/1175, SROWA.
- 46.
Aborigines Department annual report of 1897, Acc 255, 1889/28, SROWA.
- 47.
In 1889, charges were brought against brothers Arthur and Gordon Shaw for beating Indigenous servant Bungordy to death, but the case was dismissed. Western Mail, 12 October 1889.
- 48.
On the more complex dimensions of Indigenous women’s role as workers for white settlers, see for instance Ann McGrath, ‘“Spinifex Fairies”: Aboriginal Workers in the Northern Territory, 1911–1939’, in Women, Class and History: Feminist Perspectives on Australia, 1788–1978, ed. Elizabeth Windschuttle (Sydney: Fontana Collins, 1980), 237–267.
- 49.
Sayer to Prinsep, 25 August 1898: Acc 255, 1898/1175, SROWA.
- 50.
Inspector Lawrence to Constable Donovan, 6 September 1898, and Constable Donovan to Inspector Lawrence, 13 September 1898: Acc 255, 1898/1175, SROWA.
- 51.
Telegram from George Thompson to Frank Wittenoom, 28 August 1892: Acc 255, 1898/1175, SROWA.
- 52.
Depositions of Jenny Lind and Billelia, alias ‘Nellie’, to H.M. Maloney JP, 14 September 1898: Acc 255, 1898/1175, SROWA.
- 53.
Wittenoom to Prinsep, 20 September 1898: Acc 255, 1898/1175, SROWA.
- 54.
Premier John Forrest to Prinsep, 5 November 1898: Acc 255, 1898/1175, SROWA.
- 55.
Governor’s Circular to Magistrates and Justices of the Peace, 12 September 1887: Acc 527, 1887/3128, SROWA.
- 56.
See for instance the case of J. Bailey, manager of Namatharra station, who in 1906 was investigated for ‘cohabiting’ with his domestic servant, refusing the claims of her Indigenous husband ‘Cable’ for her return. Acc 255, 1099/1906, SROWA. In the same year, George Burrows, manager of Minderoo station, was charged with ‘cohabiting’ with his domestic servant ‘Nellie’, again in spite of the demands of her Indigenous husband ‘Dicky Dad’ that she be allowed to return to his camp. Despite Nellie’s own statement that she asked ‘Mr Burrows to let me go camp, he no let me go’, the case against Burrows was discharged for want of sufficient evidence. Acc 255, 690/1906, SROWA. Respectable pastoralist Walter Nairn, co-owner of Byro station, was also investigated for ‘cohabiting’ with his domestic servants during the 1890s and was considered to be ‘one of the worst offenders against the [Aborigines] Act’. Report of Constable Doody, 12 January 1907: Acc 255, 1099/1906, SROWA. After the Aborigines Act (1905) set limits on interracial marriage, some men in the pastoral sector sought Indigenous women as wives in order to have access to a housekeeper or cook. See James le Chung to the Chief Protector, 10 July 1906: Acc 255, 690/1906, SROWA.
- 57.
Report of Sub Inspector Patrick Troy, 11 February 1889: Acc 430, 1889/471, SROWA.
- 58.
‘A Drastic Indictment of the Police—By a Resident of the West Kimberley’, Sunday Times, 7 February 1909, 1.
- 59.
Stewart McGill, J.P. to Prinsep, 25 May 1901: Acc 255, 486/1901, SROWA.
- 60.
Olivey to Prinsep, 24 November 1901, Acc 255, 1901/975, SROWA.
- 61.
For instance, also in Western Australia, Francis Whitfield was acquitted in 1852 of grievous bodily harm after he shot and wounded Mordecai, who was attempting to retrieve his wife ‘Annie’. Annie allegedly wanted to stay with Whitfield against Mordecai’s wishes, leading to the confrontation. Acc 3472, item 93, case 535, SROWA.
- 62.
Henry LeFroy to Prinsep, 12 April 1901, Attorney General George Leake to Prinsep, 11 May 1901, Prinsep to the Law Department, 11 May 1901: Acc 255, 1901/406, SROWA.
- 63.
Whereas self-government was granted to Australia’s other colonies during the 1850s, it was achieved much later in Western Australia in 1890.
- 64.
Prinsep’s notes on the drafted Aborigines Act of 1905 (undated), Acc 255, 1905/97.
- 65.
Section 40–44, Aborigines Act (5 Edw. VII No 14) 1905 (WA).
- 66.
On the nationwide impact of protectionist policies see, for instance, Anna Haebich, Broken Circles: Fragmenting Indigenous Families, 1800–2000 (Fremantle: Fremantle Arts Centre Press, 2000).
- 67.
Victoria Haskins and Claire Lowrie, ‘Decolonising Domestic Service: Introducing a New Agenda’, in Victoria Haskins and Claire Lowrie, eds. Colonization and Domestic Service, 1.
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Nettelbeck, A. (2018). Intimate Violence in the Pastoral Economy: Aboriginal Women’s Labour and Protective Governance. In: Edmonds, P., Nettelbeck, A. (eds) Intimacies of Violence in the Settler Colony. Cambridge Imperial and Post-Colonial Studies Series. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-76231-9_4
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