In order to claim land under the federal land rights legislation promulgated in the wake of Mabo, Aboriginal people must demonstrate an enduring connection to the site under claim, and must show that they have maintained that connection or occupation under traditional laws or customs. An important proviso for Povinelli’s argument is that these traditional laws must not run counter or be “repugnant” to basic principles of Australian (i.e. non-indigenous) law. The Native Title Act, after all, is a legal instrument of the settler nation, and must be the final arbiter of what is acceptable practice. The problem here for Povinelli and for Aboriginal people seeking justice under the law, is clearly that therecognition of what is authentically Aboriginal is determined by a system of values that is inherently non-indigenous. Aboriginal people are forced to demonstrate their own authenticity in terms that are dictated by an alien culture. How, she asks, are they to perform the tasks of defining themselves when they are primarily, first, defined as other?
In this lies the paradox and problem of multiculturalism. Though it may strive to recognize a plurality of cultures, the law is always and ultimately monocultural, for the bedrock of common law is the shared assumptions of the prevailing culture. It is important to note that Povinelli does not assume malicious intent on the part of the liberal imagination that is attempting to redefine the cultural essence of the nation; the attempt to define native title or to rectify the legacy of terra nullius is not a large-scale confidence game or a legal swindle. I think she believes that it is motivated by a genuine concern for justice (although she may question the motives of individual actors in the drama). However, it is an enterprise that is doomed from the start by its own foundations in a culture that is alien to the indigenous one it attempts to define and thereby recognize.
Her analysis attempts to probe deeper into the problems and failures of the Native Title Act (and the liberal, multicultural imagination that created it) than the surface, or obvious, tensions of the law’s handling of claims: the exclusion of rights to the sea or the impossibility of reclamation on the part of the traditional descendants of urbanized areas where the legacy of colonialism has already, by the late twentieth century, obliterated the continuity of tradition that would allow a successful claim to native title.
The deeper problem, and perhaps the tragedy, lies in the dilemma of demonstrating the authenticity of indigenous cultural practice while remaining within the bounds of what Povinelli calls the “public reason” that is essential to the successful argument for native title. The conflicting claims of the Belyuen and the Larrakia demonstrate one aspect of the problems that public reason poses to indigenous people. For decades now, anthropological research has focused on kinship structures as an essential, defining component of Aboriginal culture, and one that is of paramount importance in demonstrating sustained connection to land. The principle of descent through the male line has been documented repeatedly in such studies; moreover it is one that the non-indigenous culture finds quite comfortable. In contrast, the principle of connection to country through conception is slipperier in the context of the courtroom. In the last decades of the twentieth century, Larrakia occupation of the Cox Peninsula has all but disappeared. Larrakia presence has been replaced by that of the Belyuen migrating from further south along the coastline. The Belyuen now find themselves tied to this land through the principles of conception at or near the Belyuen waterhole. How is justice served in this case, where conflicting “traditions” engage and where the Belyuen tradition is temporally shallower (more recent) than that of the Larrakia who lack, however, the recent proofs of continuity of occupation?
This conflict exposes another problem generated by non-indigenous law and the theater of public reason: the force of disinterestedness. The principle of “disinterest,” critical to the impartial adjudication of disputes, puts claimants at an immediate disadvantage, for they are by the act of making a claim, not disinterested. Cultural politics impedes again when one considers another compelling index of authenticity in the eyes of the non-indigenous culture: the notion of the secret/sacred nature of much traditional law. The Hindmarsh dispute in South Australia is the exemplar of this conundrum. When the Ngarrindjeri women sought to block the construction of a bridge to Hindmarsh Island on the grounds that the work would threaten sacred sites on the island, the immediate problem posed to “public reason” was the lack of evidence of these sites that could be openly scrutinized. How does one demonstrate (from the Latin “to show completely”) that which is undemonstrable?
And finally, there is the issue that Povinelli calls “repugnance.” What is the force of traditional law or custom when that custom is repugnant to the prevailing cultural system? Povinelli devotes an entire chapter to the problems Spencer and Gillen faced in witnessing traditional rituals that violated their sense of sexual propriety. It is not just the shame or discomfort that these practices produced in the anthropologists that is at issue here; it is equally the unwillingness to engage their understanding of the culture that generated this shame or repugnance, and their subsequent unwillingness to objectively document what they observed. The non-indigenous understanding of traditional culture has been increasingly crippled by subsequent anthropological suppression of this evidence. Like the secret/sacred, the unspeakable is lost to public discourse. This is true even when, in cases like child marriage, the unspeakable can be reported but not discussed without outrage.
The net effect of these paradoxes is, at least in legal terms, a circumscription of indigenous voices and a subjugation of them to the values of the collective moral limits of the majority. The “authentic” voice of Aboriginality–a fanciful notion in itself–must to some degree, “more or less” as Povinelli repeatedly characterizes it, be inauthentic to be heard and must, therefore, undermine its own cause. This, then, is the “cunning” of recognition, a deceit, however unintentional. As I said above, Povinelli does not ascribe this state of affairs to maliciousness, but she does intend to expose the limits of the multicultural enterprise in an attempt to argue the difficulties faced by indigenous people attempting to assert their place within the “multicultural” state.
There is more to The Cunning of Recognition than the propositions I have sketched out in these few paragraphs. However, I think that the burdens of multiculturalism that she has laid out are an important theme throughout. It may be that Aboriginal people cannot escape the duality of identity forced upon them by the aspirations of the multicultural state and the dissonance that such duality must engender. Perhaps as a result of having that dissonance foregrounded by her discussions, the rest of us can also aspire to a greater sensitivity and and more nuanced understanding of the dilemmas thus posed.