Historicizing Colonial and Postcolonial Indigenous Crime and Punishment - Law Assignment Help

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Introduction 

The criminalization of Indigenous peoples has been a means of control and containment since British colonization of Australia. Punishment of Indigenous peoples in the early colonial period involved violent displays that climaxed in public executions. Although the violence of the early years continues to haunt the criminalization of Indigenous people and criminal justice processes, overall the late nineteenth century saw a transformation of overt violence into ‘epistemic violence’ through the production of colonial knowledges and laws (Spivak 1988: 76). White claims to Australian land subjected the Other to an inferior and precarious position that could be undermined and obliterated (1988: 76). This book will shed light on the precarious subjectivity of Indigenous Australians in the process of criminal sentencing. Courts create knowledge of Indigenous peoples that fits within the normative postcolonial paradigm. These representations wax and wane between the judicial will to tolerate or exclude alterity. 

As a context for the analysis of Indigenous representations in sentencing, this chapter examines the portrayal of Indigenous people on the frontier and in various colonial and state legislation governing Indigenous Australians. It relies on records of Aboriginal Protectors and legislators, media reports and personal accounts by settlers and Indigenous people. These sources reveal that from the late eighteenth century there were persistent attempts to ‘eliminate, restructure and reconstitute Aboriginal identity in the interests of the colonizer’ (Blagg 2008: 3). Key to this process is the classification of Indigenous people as ‘criminal’ as well as their instrumental criminalization and punishment. Punishing Indigenous people for colonial transgressions or simply because of their ‘race’ was intrinsic to ‘obliging the native to cathect the space of the Other on his home ground’ (Spivak 1985: 253). In other words, it forced the ‘natives’ to become outsiders and experience their home space as an imperial space. 

This chapter does not endeavour to explain criminal offending per se, but to explore the processes for criminalizing Indigenous people, especially in northern Australia, and how they straddled broader control agendas in transforming the ‘space of the colony into a colonised space’ (Blagg 2008a: 131). On the frontier on the cusp of the nineteenth century, it was expedient to dispossess Indigenous people of their land through the violence of the free settler, military corps or under the governor’s prerogative.1 It was generally the squatters, who included wealthy pastoralists known as the ‘squattocracy’, who were given free rein to ‘disperse’ (violently eradicate) Indigenous people from their land (Kowald and Johnston 1992: 60). This was backed by a media campaign that depicted Indi- genous resisters as outlaws. Crime was a mode of ‘black subjection’, but also ascribed the ‘Other’ with an agency of criminality – being the only form of ‘agency recognised by law’ (Hartman 1997: 41, 104). In all other facets of life and law Indigenous people were rendered helpless victims who were in need of salvation. Indigenous agents were a threat to the expansion of British colonial capital and the efforts of settlers in quelling this threat were part of the colonial pursuit. 

When the colonial legislature and courts were established, they legalized the force inflicted on Indigenous people. Courts that handed down corporal punish- ment or ordered public executions for Indigenous people served to make an example of those who resisted colonization. For law-makers, like the punishment- administering settlers before them, Indigenous people were regarded as only capable of learning through might, and special provisions were inserted into criminal laws to allow whipping and other corporal punishment as a sentencing option exclusively for Indigenous people. Such countenances of the criminal law confirm Agozino’s (2004: 344) suggestion that criminal justice is ‘inherently a colonial enterprise’ where ‘repressive technology’ is ‘monopolised by imperialist countries’. The criminal justice system not only punishes Indigenous people, but strives to delegitimize Indigenous sovereignty through the practice of jurisdiction and authority (see Ford 2006: 107). 

As these violent punishments went into decline, ‘epistemic’ violence involving the internalization of colonial knowledge became the new weapon of control. Indigenous people were detained in administrative and penal institutions and instruction and hard labour became the means for transforming Indigenous lives.

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