Inalienable RIghts in Northeastern Arnhem and Western Desert

In America, at least, the concept of “inalienable rights” is almost a political cliche. It is part of a tradition that in modern times goes back to John Locke, who identified them as being “life, liberty, and estate (or property).” For my countrymen they are enshrined in the Declaration of Independence, “that all men are created equal, that they are endowed by the Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

In legal terms, inalienable rights are absolute and can not be bestowed, can not transferred to someone else, can not be surrendered. In the commodity-driven country I inhabit, the concept of an inalienable right to “estate (or property)” seems almost unimaginable, although I learned at a very young age that Esau sold his birthright to Jacob for a mess of porridge, one of the more confusing parables of the Old Testament.

Yet the concept of inalienable rights is a very illuminating one in the context of Aboriginal ritual and painting, especially if one sees painting as essentially an extension of ritual activities. The parallels to Locke and to Jefferson are striking. And in examining such rights, two essays in Hunters and Gatherers: property, power and ideology, edited by Tim Ingold, et al. (Berg, 1988) cast light on how they are relevant, though differently employed, among Australian Aboriginal people. Ian Keen’s essay is entitled “Yolngu Religious Property” (vol. 2, pp. 272-307) and Robert Tonkinson’s “‘Ideology and Domination’ in Aboriginal Australian: A Western Desert Test Case” (vol. 2, pp. 150-164)

Jefferson’s phrase “endowed by the Creator” seems most apt, especially in terms of Yolngu tradition, which explicitly acknowledges the manner in which ancestral beings, in particular the Djang’kawu, in their travels across the country, created sacred features of the landscape, gave birth to people, and gave each group its unique language, rituals, designs, and dances. These “cultural” emblems are what connect the people to their land, and without which no group or clan can rightfully possess, use, or deny use of the land. 

“Owners” may extend rights in their land to members of other clans. To cite a secular example, in Ian Dunlop’s film At the Canoe Camp, from the Yirrkala Film Project, Narritjin Maymuru (Manggalili clan) has received permission from Munggurrawuy Yunupingu to cut down two trees on Gumatj clan land in order to fashion them into dugout canoes for sale to white men from the mining community at Nhulunbuy. After the completion of the canoes, a gathering of elders convenes to ratify the decision to allow Narritjin to profit from this exchange; Narritjin, having displayed that he will show proper respect for the country, asks permission to cut more trees. His argument in part turns upon the fact that since the Gumatj do not wish to take advantage of these resources now, it is in everyone’s benefit to allow proper use by Narritjin; if the trees are not harvested by him, other, disrespectful men will just come in and take them without asking permission, and it is better that the trees be taken with permission and with proper deference to the country. As an interesting sideline to this discussion, there are several men of the Rirratjingu clan (including Wandjuk Marika) present during the negotiations, but they take no part at all, since they have no rights to the land–they are not even of the same moiety–and are there to accompany and interpret for an anthropologist who is their guest, and who has received permission to tape-record the conversation.

While this example focuses on material resources, the Yolngu recognize that the owner of a ritual or design may likewise grant rights to that design to others who do not natively possess it. (I have not encountered an instance of a individual requesting rights to a painting or ritual, in the manner of Narritjin’s request for use of trees, and suspect that such requests rarely if ever occur, in part because they are unlikely to be granted.) 

The significant element of these gifts in ritual exchange is, as Keen puts it, “[s]uch a gift does not extinguish the rights of the donor, and so it follows that, far from alienating the object from the holder, the gift creates a new relationship between donor and recipient, or reinforces an existing relationship” (p. 291). In the Canoe Camp example, Munggurrawuy allows Narritjin to fell the trees, but after the work is done, Narritjin and Munggurrawuy reiterate the agreement, even before and perhaps as a necessary pre-condition to Narritjin’s request to extend the permission. Simply granting the gift once does not extinguish Munggurrawuy’s right to withhold it in the future.

Keen then refines the notion of exchange with the following gloss. “It is quite another thing to make a gift of an object which is the token of a type, such as a cassette tape of a song, a bark-painting or a feather string. This gift or sale of bark paintings and other artefacts does not extend rights to make or perform” (ibid.) The significance here is in the distinction of the transfer of a what Keen calls a “type,” an instance of a right rather than the right itself. Let me note in passing that I think it is precisely this distinction that informs the Yolngu’s persistence in pursuing legal actions in Australian courts over the unauthorized reproduction of designs in cases like Milpurrurru (and others) v. Indofurn, to which the Yolngu artist Banduk Marika was a party. And to say that the success of these copyright infringement cases, and the importance of permissions to them, flows directly from Milirrpum v Nabalco, the Gove Land Rights case, through the Land Rights Act (Northern Territory) 1976, and the Mabo decision.

Let me turn now to the Western Desert and to Tonkinson’s essay on “Ideology and Domination.” In his analysis of social relations among the Mardujarra, Tonkinson notes the importance of the wide-reaching regional connections among people in the Western Desert that I discussed earlier (following Fred Myers’ lead) in the entry “Pintupi Country, Pintupi Painting.” Two critical differences inform the distinction between the Yolngu and the Western Desert tribes: there is no strong clan structure in the Western Desert, and the relative lack of natural resources and the threat of scarcity makes cooperation among small bands of desert dwellers essential to survival.

The practice of the exchange of ritual thrives, however, built on the stratum of reciprocity that informs Yolngu behavior, but with the additional spur of necessity in the face of drought. As in Arnhem Land, the exchange of ritual establishes and affirms the interconnectedness of the people, although it operates in the Western Desert at the level of small communities rather than “land-owning” clans. The dynamic is quite different, however. Where Yolngu clans gather frequently to mark milestones in the lives of their members, particularly in the series of mortuary rituals that are perhaps the major form of ritual expression, large gatherings in the desert (also serving to mark milestones in individual lives, particularly the stages of initiation for young men) are dictated by the availability of resources, and happen once or twice a year. 

In Yolngu ritual, the exact form of any single performance is a matter of intense negotiation, and the selection of elements from among those whose participation is required or appropriate can be protracted. This process is extremely well documented in Howard Morphy’s Journey to the Crocodile’s Nest: an accompanying monograph to the film Madarrpa Funeral at Gurka’wuy (Australian Institute of Aboriginal Studies, 1984; the film is also part of the Yirrkala Film Project), in which the clan relations of the deceased child and their holdings in land determine both the songs that are sung and the order in which they are performed.

In the Western Desert, by contrast, rituals are almost never the exclusive property of a particular group. Rather, they are often described as “traveling rituals” because they are passed from group to group and community to community over large distances. The most famous of these rituals in recent times is known as the “Balgo Business,” which probably had its origins near the west coast of Australia and has made its way as far east as Lajamanu and Yuendumu.

The rituals, Tonkinson asserts, often have their origins in a particular community, and indeed with a particular individual, who receives the songs and designs in a dream. (Again, the Gurirr Gurirr ceremony that Rover Thomas received from the sprit of a woman who died shortly after Cyclone Tracy devastated the Top End and the Kimberley is a famous example.) They are nonetheless not attributed to human origin, but are new revelations from the ancestral powers which have simply been undisclosed to this point. They are, it is important to note, still “endowed by the Creator.”

In tandem with the social directive to share resources, these local rituals can not remain local for long. When the large annual aggregations occur, there is pressure for group to share rituals. Conversely, a new ritual is an effective incentive for groups to attend these convocations and thus serve to perpetuate the gatherings and increase the social solidarity among widespread familial groups. Like seasonal water and food supplies, these rituals are an important resource that draw people together. Tonkinson explains:

The hoarding of such rituals by particular groups, however, is viewed by the Mardujarra as akin to someone refusing to share, which is ideologically unthinkable. Groups are therefore under strong pressure to release these rituals, especially if they prove popular, and in so doing they eventually lose control over them. The rituals and associated paraphernalia are handed on from group to group at larger gatherings and are thus diffused into distant parts of the desert (p. 160).

Thus the concept of “inalienable rights” does not operate as strongly in the Western Desert as it does in Arnhem Land. While it is true that in both cases the owners of the ritual must assent to the sharing of it, the critical difference, as Tonkinson states it, is that is the Desert, the original owners “eventually lose control.” Among the Yolngu, on the other hand, rituals and designs remain the inalienable right of the owning clan unless that clan is in danger of extinction through the failure of the male line; even then, the possession of the dying clan’s land must be accomplished through the acquisition and subsequent possession of its rituals.

I wonder if these differences in cultural transmission do not in some way inform the art that is being produced in these two regions these days. If one looks at Yolngu paintings from thirty years ago and those produced today, it is possible in many cases across the decades to identify the clan affiliation and sometimes even the family or direct lineage of the painters and the story being told. While I do not want to deny change and innovation among Yolngu artists, there exists a continuity in design that is much stronger than that seen in the Western Desert. Among the Pintupi and their countrymen, there has been considerable innovation in designs depicted in paintings, and a far greater adoption of styles across language groups and settlements. In part this is a function of travel in the Western Desert, as the frequent interchange between Balgo and Kiwirrkura demonstrates (Patrick Olodoodi Tjungurrayi comes to mind as the premier example), but I suspect that it is also be be accounted for by a greater openness to the exchange of ritual and the inherent loss of control that Tonkinson postulates.

Among the Yolngu with their clan structure, differences in ritual and design tend to emphasize the distinctions among groups of people while still providing for the maintenance of regional links and cooperation. In the Western Desert, the exchange of ritual and designs forms the basis for social networks that are essential to basic survival. In both areas, the precept articulated by Fred Myers as “always ask” (“Always Ask: resource use and land ownership among Pintupi Aborigines of the Australian Western Desert,” in AAAS Selected Symposium, v. 67, Westview Press, 1982, pp. 173-195) is fundamental, but in Desert art it seems to have generated a more fluid transmission of designs and less overtly identifiable links between those designs and individual Dreamings. 

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