Out of the Silence

by Robert Foster

  Two or three troopers supported by armed bushmen would be able to repel a large number of natives and overawe them and keep them in order while the same number of troopers could not so well protect white men who scruple to draw a trigger in their own defence or in support of their defenders and therefore a larger force than is usually sent to an outstation would be required and this would be more necessary when the natives become aware that the missionaries declined fighting for the salvation of their property or their lives.75

  The Commissioner’s memo distils the strategy of frontier policing that had taken shape during the tenure of Warburton. The task of the Mounted Police was to provide protection for settlers on the frontier, and it was also understood that settlers would use firearms ‘in their own defence or in support of their defenders’. Given the limited number of available police in remote areas, it was taken for granted that armed settlers would assist them in ‘repelling’ Aborigines, and that an essential part of keeping them ‘in order’ was to ‘overawe’ them with displays of force. These were the things expected of ‘combatants’ in Australia’s frontier wars.

  The missionaries approached Commissioner Hamilton to provide them with police protection, and an outpost was established at Kopperamanna in October 1867.76 Despite the presence of the police, by the end of 1867 the Moravians decided to abandon their missionary enterprise and return south. The police camp was then shifted to the Lutheran establishment at Killalpaninna, where it remained for the next five years, mostly under the control of Mounted Constable Samuel Gason. The presence of the police did not end the anxieties of the missionaries at Killalpaninna. On 21 April 1871, they found themselves in the middle of a tribal feud. In the evening, Reverend Homann was confronted by the spectacle of dozens of Aboriginal people crowding onto his verandah, imploring his protection. The kin of an Aboriginal man who had been killed a month before had formed a Pinya or revenge expedition and were camped nearby, awaiting the moment they could extract retribution. The missionary allowed them to remain, and told them he would only use his firearm if they attempted to enter the house. After an anxious night, the Pinya expedition left at sunrise the next morning.77 Mounted Constable Gason, who had been in the region for some years now, wrote to his superiors that he had no doubt they would return in the near future with a stronger party in to fulfil their law as it required, and two more troopers were dispatched from Blinman.78 For the time being, the augmented patrol was maintained, though the Commissioner questioned the ‘desirability of incurring a large expenditure for the purpose of assisting a religious sect’.79 By 1873, the Lutherans were told that if they remained, they ‘must be prepared to protect themselves’.80

  Most tellingly, the concerns over the Pinya expedition had raised questions about the extent to which the police should interfere with what Gason had acknowledged as Aboriginal law. Commissioner Hamilton wrote to the Chief Secretary for advice:

  I should be glad to know if the Honourable Chief Secretary wishes the police to interfere with them at a distance so far from the settled districts or if he thinks it would be advisable to embroil the Police in the quarrels of the Aborigines of Australia.81

  The Chief Secretary’s simple answer was ‘no’. His reluctance to involve the police in matters relating to traditional Aboriginal law is revealing, for it highlights yet again the often unarticulated reality of Aboriginal people’s legal status: although technically British subjects, they maintained a de facto sovereignty until such time as European authority could be firmly established. Bringing Aboriginal people within the authority of the Crown first required their actual subjugation. This pattern had been visible since the beginning of settlement. A telling marker of change across the colony’s frontiers, as across other colonies, was that it was only once European authority was considered to be secure that police were willing to arrest Aboriginal people for inter se crimes.

  The rule of law?

  By the 1870s the worst of the violence between Aboriginal people and settlers in South Australia south of the Northern Territory border had run its course. This is not to say that there were no subsequent clashes, or indeed that there were no subsequent battles that have gone unreported, if not unremembered – but that merely reminds us of the remarkable architecture of Australia’s ‘strange frontier’. By the 1870s European authority had effectively been established, and it was established by force of arms. This is a point that should not be passed over lightly; dozens of Aboriginal nations occupying a region which in combination exceeded the land mass of Europe were dispossessed through force of arms. In so far as the rule of law did work on the frontier to recognise Aboriginal people as British subjects, it did so principally to punish them, indicated by the considerable figure of 22 Aboriginal people tried and executed over the first 30 years of settlement.

  The clash on Elder, Dean and Hack’s Lake Hope property in 1865, in which Charles Neumann died, was perhaps the last significant frontier battle to be fought in South Australia’s ‘land wars’, or at least the last to be publicly documented. It had its sequel in 1866 in a court case which tellingly underscored the fact that even after 30 years of frontier violence, the ideal of the rule of law was hopelessly inadequate at providing the protective shield to Aboriginal people that it promised.

  In the aftermath of the attack on Dean’s camp, a well-armed party of 15 police and settlers under the command of Inspector Roe endeavoured to track down the Aboriginal party responsible. After weeks on the track they gave up, having met with only a few Aboriginal people during their search.82 In all likelihood the attackers, an ochre party, had returned north. Yet some time later, two Aboriginal men known simply as ‘Frank’ and ‘Freddy’ were arrested when found in the vicinity of Lake Hope, and in September 1866 were tried for the murder of Charles Neumann. The case against them was exceedingly weak, since only one of the three European witnesses who gave evidence claimed to be able to identify them as being present during the attack on Dean’s party. In the absence of any more incriminating evidence against them ‘Frank’ and ‘Freddy’ were acquitted, but what makes this particular case unusual is that it has a documented ‘back story’ that is usually missing in the reporting of such clashes. For whatever reason, Thomas Elder made available to the press a series of letters that he had received from Dean which detailed the events surrounding the attack, and some of the correspondence was published in the Register in the months leading up to the murder trial. As the editor of the Register observed, having failed ‘to affect a peaceable removal’ of Aboriginal people from his run, Dean and his men had engaged in a concerted campaign to forcibly drive Aboriginal people from it.83

  When the trial of ‘Frank’ and ‘Freddy’ for the murder of Charles Neumann took place, then, this correspondence was in the public domain. At the closure of the trial, the Defence counsel’s summing up and the Judge’s directions to the jury provide us, in microcosm, with all the contradictions and flaws of a system that had been in operation for thirty years but was still incapable of dealing with cases such as these. The defence counsel’s address to the jury began with a sketch of the circumstances: ‘a party of armed squatters and their assistants armed themselves for the purpose of dispossessing the blacks of certain cattle they alleged the natives had taken away, and after an encounter were driven away, and the cattle fell into the hands of the whites’. It was regrettable, he stated, that rather than calling upon the police for legal redress, the leader of the settler party instead organised ‘an armed party with which to meet the natives’, which went out expressly ‘for the purpose of shooting the blacks in the event of any resistance being offered’.84 His simple and honest summary distilled the essence of violence between Europeans and Aboriginal people on the Australian frontier: settlers used force of arms to drive Aboriginal people from the land of which they had been dispossessed, and Aboriginal people, to the extent that they could, used force to resist that dispossession.

  The Judge’s summation of the case also went to the heart of the leg
al system’s inability to deal with these simple truths of invasion and dispossession. Ever since the foundation of the colony, he began, Aboriginal people ‘had been subjects of Her Majesty’, but in this case he ‘scarcely knew in what terms to direct the jury’. ‘Equal justice’, he said, should be administered to all inhabitants of this colony, regardless of their class, but it was ‘almost a matter of impossibility in a case like this’. The two prisoners’ lives were ‘trembling in the balance,’ but they ‘probably did not understand a single word of the evidence’, much less the nature of the proceedings; nor did they have ‘the opportunity of calling witnesses on their behalf, who might describe the events of the affray from their own point of view’. How difficult it must be, he continued,

  for persons who had never known anything of the existence of English law, who had never heard that the Queen of England had any authority over them … to realise the position in which they were placed.

  Going to the particular circumstances of the case, he pointed to the nature of settler behaviour: ‘this affray arose out of proceedings which never could have been contemplated unless blacks had been the persons. If a dispute similar to this had arisen, and white men had shot cattle, who would dream of arming 10 of his servants for the purpose of recovering cattle by force of arms?’ These were matters that were more properly the province of government, he said, ‘because he felt that the very attempt to apply our forms and processes equally as between the prosecutor and the prisoners did, in reality, involve a grevious inequality’.85 After three decades of colonial experience, at the very point where European possession of the country had effectively been secured, the judicial system was still struggling with the issue of the equitable application of the rule of law. It was an issue only ever resolved when force of arms had rendered the dilemma redundant.

  By the early 1870s, European settlement was expanding further north into South Australian administered Central Australia. The next two decades would demonstrate that the same cycle of violence would turn again, and the legal status of Aboriginal people as British subjects would yet again be put on hold as their subjugation to colonial authority was affected through force. When the recently built Barrow Creek telegraph station on the new Overland Telegraph Line was attacked by a Katyetye party in February 1874 and the station master killed, Police Commissioner Hamilton considered the Aboriginal group responsible to be ‘bound by no law’. Mounted Constable Samuel Gason, who had just arrived there from his Killalpaninna posting, led four punitive expeditions over the coming months. Official reports indicate that perhaps eleven Aboriginal people were shot by police in the course of those expeditions; other evidence suggests the fatalities may have been as high as ninety.86 In authorising these punitive expeditions, the Commissioner himself recommended ‘that a too close adherence to legal forms should not be insisted upon’.87

  By 1884, numerous sheep and cattle stations were established in the vast district around Alice Springs. Pastoralists’ complaints about Aboriginal attacks on their stock led the South Australian government to establish a Native Police corps under the command of Mounted Constable William Willshire to patrol this sprawling region, despite the controversial reputation the Native Police held in Queensland. As Willshire put in, his ‘duty was to see that the wild natives do not interfere with the white settlers’.88 The Native Police operated under Willshire over the rest of that decade and into the next, earning a notoriety for violence against Aboriginal people that only ended in 1891 when Willshire was eventually charged with the murder of two Aboriginal men, and the Native Police disbanded.89 The history of policing on the Central Australian frontier in the last decades of the nineteenth century suggests an exact repetition of the same legal dilemmas that had defined South Australia’s more southern frontiers since the colony was established: it was only possible to fulfil the rule of law when Aboriginal resistance had been effectively suppressed, and Aboriginal people themselves effectively subjugated.

  This lesson was one that continued to be voiced by contemporary commentators towards the end of the nineteenth century. In February 1878, a teamster named James Ellis was murdered by Aborigines at Granite Creek in the Northern Territory. In an account of the aftermath of Ellis’ murder, the Advertiser reported that Mounted Trooper Stretton had led a combined party of police and settlers who had gone out and ‘administered to the savages a lesson not at all too severe for the occasion’.90 They had tracked suspects to an Aboriginal camp three miles from the murder scene and, although it was not clear ‘whether any attempt to capture the miscreants was made on this occasion’, the camp was fired upon and ‘seventeen blacks bit the dust’. In their use of firearms, the writer argues, the police party had acted in accordance with their duty, for ‘the blacks are British subjects, and were in armed rebellion against lawful authority’.

  Yet having attempted to justify these shootings in terms of ‘lawful authority’, the reporter’s following comments pinpointed precisely the inconsistencies in the workings of the rule of law on the settler frontier. Legal niceties, he wrote, such as evidence and testimonies in a court of law, were cumbersome technicalities that had little relevance for frontier conditions and which had all too often led to ‘farcical’ results. Dragging witnesses thousands of miles to a place of trial was ‘costly and cumbrous’, and had any Aborigines in this case been arrested and brought to trial, technical flaws such as want of an interpreter ‘would probably have caused an acquittal’ and allowed the culprits to ‘commit fresh atrocities on the first opportunity’. In assuring his readers of the correctness of police action in this case, the reporter referred back to the lessons learnt from the early years of the province. That was a time, he writes, when ‘aboriginal outrages were punished by the authorities promptly, and in a manner to strike fear into the breasts of the savages’. This early-established tradition now offered a valuable precedent for managing new frontiers in the Northern Territory, because ‘when the natives find that crime is followed … by condign and certain punishment, they learn to hold the white man and his laws in awe, and then, but not till then, kindness may be successfully employed in dealing with the sons of the forest’.91

  In 1871, a few years before police administered a ‘severe lesson’ to Aborigines for Ellis’ death, leading businessman Emmanuel Solomon hosted a dinner for 500 ‘old colonists’ in the Adelaide Town Hall to celebrate the 35th anniversary of the colony’s foundation. One of the speakers was John Brown, ‘the oldest man present who heard the Proclamation of the colony read’. As Emigration Agent, Brown had been closely involved in the planning of the colony and, like his compatriots, had bristled at and resisted the attempts of the Colonial Office and those ‘Saints in the House of Commons’ to provide for the protection of Aboriginal people by insisting that the settlers negotiate for the purchase of land and that an independent Protector of Aborigines be appointed.92 Yet ironically, in his address to the old colonists Brown adopted those very foundational principles as a point of pride. The early colonists, he said, had ‘avoided one of the greatest difficulties, and one which was more anxiously anticipated than any other – that was with reference to the natives. They established relations without bloodshed, without injury, or without loss’. Although relations with ‘the natives’ had been ‘a source of great difficulty and anxiety in England,’ South Australia’s pioneers, ‘assisted by those in authority, and guided by justice and right feeling,’ had ‘managed to introduce themselves to the blacks without difficulty of collision. They did not begin by shooting the aborigines, or anything of that kind.’93 Brown’s focus on the moment of foundation, and the ideal behind it that South Australia’s settlement was more peaceful than elsewhere, merely served to obscure the history of violent dispossession that ensued. Even as John Brown was toasting the founding fathers with this speech, legal violence was continuing in the colony’s expanding far north. But in commemorations of foundation, a belief in South Australia’s sense of difference was already becoming firmly established.
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  PART 2

  NEGOTIATING THE PAST

  Chapter 8

  PAVING THE WAY BACK

  With the passage of years, settlers became ‘pioneers’. Although of course Aboriginal peoples have always known their history, white Australian stories of settlement put to the foreground the pioneer as a figure of origins, and in this process necessarily forgot the people whose dispossession secured the pioneer’s identity.1 Yet this process of national forgetting was never total, because the lived events relating to Aboriginal and settler encounters often remained central to pioneering accounts.2 Despite the frequently covert nature of frontier land wars, the violence that took place in the course of dispossessing Aboriginal people of their lands did in fact figure quite prominently in the foundational memoirs of those settlers who came to define themselves as pioneers. Its telling, however, was perhaps inevitably framed by the emergent pioneer legend, which in turn was shaped by two forces that gathered momentum in the last decades of the nineteenth century: the burgeoning mood of nationalism, and the consolidation of social evolutionary thought.

  A sense of nationalism was strong well before the nation was formalised with Federation in 1901. The children of the ‘founders’ had grown-up in the prosperous post-gold rush years. The census of 1881 showed that more than 60% of the South Australian population had been born in the colony.3 In 1871 the Australian Natives Association, an organisation for native-born European Australians, was formed in Victoria and by the 1880s branches had been established in all the Australian colonies.4 The Association’s motto was ‘Australia for the Australians’, and as converts to the doctrine of racial purity, their Australia would be a white Australia. While pro-Australian, it was not anti-British; its aim was to forge ‘a Greater Britain under the Southern Cross’.5 In telling their story this generation endeavoured to find a distinctive vocabulary and set of stories that defined their experience as Australians.