'Mother's blood, father's land': native title and comparative land tenure modelling for claims in 'settled' Australia.
Anthropologists working in the field of Australian native title are routinely directed to section 223 of the Native Title Act 1993, which states that native title rights and interests in land or waters are 'possessed under the traditional laws acknowledged' and 'the traditional customs observed' by the Aboriginal or Torres Strait Islander group in question. Because of the emphasis on 'traditional laws and customs' (the shorthand version of the Act's phrasing), documenting a claimant group's case for native title inevitably involves an extensive anthropological search through early records in order to establish, as far as is possible, the precise nature of the laws and customs of the group 'at sovereignty'--that is, at the time when British sovereignty over Australia was assumed. (2) For a native title claim to be successful. the claimant group has to demonstrate that its asserted rights and interests continue to be held under these 'traditional laws and customs', which means that the regime presently connecting people to land and waters ('country') must be reasonably consistent with the laws and customs of the people who first occupied the claim area. This issue of consistency between past and present, and its relationship to anthropological modelling of Aboriginal relationships to country, is the key theme of this paper, although I am primarily concerned with how to appropriately model the past.
The ethnographic purview of the paper is largely, but not entirely, restricted to parts of south-eastern Australia, some of which I have worked in intermittently as a native title anthropologist since 2001. (3) This region of so called 'settled Australia' (Macdonald and Bauman 2011:1-2, after Rowley 1971: vii) has particular significance in native title because of landmark Federal Court (FCA) and High Court (HCA) decisions between 1998 and 2002 that rejected the claim of Yorta Yorta People to hold native title rights and interests along a section of the Murray River in Victoria and New South Wales. (4) The High Court introduced much new vocabulary into the definition of native title, including the idea that 'acknowledgment and observance of [a group's] laws and customs must have continued substantially uninterrupted since sovereignty' (Yorta Yorta, HCA, para. 87, my emphasis).
At the heart of this question lies the problem of modelling change and continuity; at what point would 'substantial interruption' take effect? In Yorta Yorta (para. HCA, 82) it was stated that the question was:
... especially difficult in cases, like this, where it is recognised that the laws or customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement. In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted. It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant....
The judges said that 'some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests ... will not necessarily be fatal' to a claim, so long as law and custom 'can still be seen to be traditional law and traditional custom' (Yorta Yorta, HCA. para. 83). Their view was that contemporary Yorta Yorta rules and customary practices connecting them to land were not traditional in the sense defined by The Native Title Act 1993.
Judges make up their own minds about 'substantial interruption' in litigated claims, as do State and Territory governments in mediated claims, (5) but both are guided by the expert evidence of anthropologists. While 'substantial interruption' is not a term of art in anthropology, associated concepts 'have been subject to decades of critique within the discipline' (Macdonald and Bauman 2011:2). Anthropologists working in native title are expected to put forward informed opinions about the degree to which contemporary laws and customs are in harmony with, or at least derived from, those documented in earlier ethnographic accounts. The chief problem faced by those of us working in 'settled' Australia is how to characterise an Aboriginal group's early land tenure system in terms justifiably comparable to what claimants have said and done in more recent times--which is difficult for two reasons. Early local ethnographic accounts are often thin or inexpertly compiled and sometimes almost completely absent. Also, Aboriginal people in south-eastern Australia have been most visibly affected by invasion and colonisation, and have, more than many others, 'suffered extreme dislocation from their traditional countries' (Macdonald and Bauman 2011:2). The two issues are complementary, because it is vitally important that anthropologists depict customary rules and practices as accurately as possible in both deep historical and contemporary contexts. While this is a simple truism, I suggest here that there are general principles in Aboriginal land tenure that can be convincingly invoked in predicaments where local facts are missing or pointing in a misleading direction. I also conclude that, in light of the long range tenacity of some of these principles, we should not always be in a hurry to model them too fully as alteration (or even 'adaptation').
I suggest that the principles, encoded in the short title of this paper ('mother's blood, father's land'), are manifest across the continent, but tend to be inflected in particular ways in the south-east. Macdonald has warned against 'the extrapolation of inappropriate models from one area to another and even to the entire continent', as well as 'ethnographic homogenising and generalising in the absence of data'--the latter problem allegedly being 'particularly common in south-eastern Australia, where few comprehensive ethnographic analyses have been conducted' (2011 a:63). While I am sympathetic to such cautions, I think it equally important that an 'absence of data' should not blind anthropologists to analytic gains that can be made by a judicious use of comparison through both space and time. What I propose to show here is that 'elementary structures' of connection to country identifiable in ethnographies of 'remote' Australia can serve to bring the often patchier ethnography of 'settled' Australia into sharper relief, as well as clarify the nature of continuities between past and present.
THE DREAMING/THE LAW (OF THE LAND)
There are many precedents for thinking about Aboriginal Australia in terms of what Descola calls its 'common structural characteristics' and 'remarkably homogenous' cultural arrangements (2013:146). Descola himself (2013:144-171), along with Stanner (1979:23-40, 106-143) and von Brandenstein (1982), describe Aboriginal totemism as a more or less unique ontological type, and in Stanner's case this dovetails with his pan-Australian appreciation of Aboriginal land tenure and use (1965), with estates simultaneously defined as countries principally, if not exclusively, associated with patri-groups. In addition, there is Radcliffe-Brown's well-known extensive treatment of Australian social organisation as 'varieties of a single general type' (1931:4), which has been elaborated on by Scheffler, who charts similar 'elementary structures' across the length and breadth of the continent (1978:529).
In the native title context, Sutton (2003; also see 1998) has garnered and analysed material from across Australia and his most recent book is essential reading for anthropologists seeking to model systems of tenure for claims, although he concentrates chiefly on the way land tenure is socially articulated. While he makes critically important remarks about the nature of what he calls 'underlying title' (analogous to 'radical title' held by the Crown or the State) and the way it is described as 'The Law' or as 'something derived from ancestral people or Dreamings' located in country (2003:113, 117), he does not devote much space to a detailed analysis of this ontological ground and how it serves to define 'kinship'. He does, however, say the following, which I take as a suitable starting point for a summary exposition of principles of connection to land that are not simply 'social', but also 'spiritual':
Particularly in remote Australia, the entitlements of people to places are usually regarded as at their strongest when those people enjoy a relationship of identity with one or more Dreamings of that place. This is an identity of spirit, a consubstantiality, rather than a matter merely of belief, but it is still a pendant relationship: the Dreaming pre-exists and persists, while its human incarnations are temporary (2003:117).
Although The Dreaming varies across the continent, its broad, foundational outline generally implies that 'entitlements of people to places' need to be situated within an understanding of both 'identity of spirit' and an identity of substance ('consubstantiality').
As is well known, Stanner characterised The Dreaming as 'a sacred, heroic time long ago when man and nature came to be as they are; but neither "time" nor "history" as we understand them is involved in this meaning' (1979:23). This is so because the time 'long ago' when things came into being is both indefinite and 'still part of the present' and has 'an unchallengeably sacred authority' (1979:24)--hence its sense being translatable as 'The Law'. All 'laws and customs' come from The Dreaming, but they continue through time as The Dreaming. But as Stanner says, The Dreaming is not only a 'narrative of things that once happened'; nor only 'a kind of charter of things that still happen': it is also 'a kind of logos or principle of order transcending everything significant'. To that extent, and while The Dreaming is eternal, it is not antithetical to change; it is beyond time and history, but at the same time their wellspring. As The Law, it may even be said to authorise change, since its dynamic continually recreates order. A feature of this order is that it does not reference 'man and nature', since Aboriginal ontologies are not articulated by any such distinction: rather, totemic identities are common to humans and non-humans alike, such that 'humans and nonhumans share certain common properties that are stable enough to be passed down from one generation to another' (Descola 2013:151). That is, these properties, both spiritual and material, help to define descent.
They also define 'groups'. In this regard, Stanner (1979:132) has made the most clear and relevant statement:
Aboriginal thought is possibly best expressed by saying that all and any members of a species, variety, or class are 'the' totem without respect to space or time. Not this eaglehawk or that crow, but all and any eaglehawks or crows that were, are, or might be.... The matter may be put another way.... [When] a particular totem is cited it is as though it were the cardinal number of all the family of sets associated with the number. In this aspect a totem is an abstract symbol for the possible membership, over all space and time, of the sets of people symbolised by it--the dead, the living, the unborn. The whole family of sets is 'listed' or 'mapped' under the abstract symbol and brought into a many-to-one correspondence with it. Any particular instance of a totem at a place or point in time is, in the symbolic sense, an image of the whole indefinite family of sets. A thoughtful Aboriginal once said to me: 'There are Honey People all over the world' (original emphasis).
However, as intimated above, the sets do not simply comprise 'people'; they also comprise nonhuman phenomena which stem from the same source--creatures like eaglehawk and crow, and other things like honey (and infinitely more).
It is an anthropological commonplace to say that, for Aboriginal people, the ultimate source of all things is country ('the land'). To the extent that these things are grouped as dreamings, country takes the form of a 'totemic landscape' (Strehlow 1970), so that Stanner's 'sets' are associated with estates and act as corporations. Stanner (1979:143) says:
The associating of a totem with a collection of people was that which transformed them from just a collection into a group with a sign of unity. When everything significant in the world was thus parcelled out among enduring groups, the society became made up of perennial corporations of a religious character. Each group was corporate in all that its totems signified and symbolised. Aboriginal totemic groups were thus sacred groups in perpetuity. The yearly round of rites let the Aborigines renew both the sources and the bonds of life constituted in that way (original emphasis). 'Renewal' does not imply absence of change in the structure of estates and estate groups, which are subject to integral processes of 'competition, conflict and demographic dynamics' (Peterson 1986:72). 'Sacred groups' persist 'in perpetuity', but only in the abstract (as dreamings), as each generation returns to its source in the country and is assimilated to sacra inherited by those coming after. In dealing with these sacra, Aboriginal estate corporations facilitate 'stability and continuity' while 'change occurs' (Williams 1999:131).
Inheritance of country is far from exhausted by patrilineal descent, but the latter is arguably the primary mode of identification with estates throughout the continent--even in the Western Desert, where it is writ small and the ideal target of matching 'descent from father' and 'belonging to country' (Hamilton 1982) is usually too difficult to reach (Sutton 2007; and see Peterson 1986:59). Scheffler maintains that Aboriginal groups do not actually have patrilineages (nor matrilineages), because what are described as such in anthropology are no more than types of serial filiation that do not form 'descent groups' and are 'not defined with reference to ancestors (much less specified human ancestors)' (1978:521). This, however, is wide of the mark, because descent is generally framed as originating from a major totemic site, its dreaming and its original holder:
Children receive their personal names from the corpus of songs related to their estate, created by the heroic ancestor who founded the patriline; and the sacred objects owned by men and women are the transformed bodies of their direct ancestors. Initiated or not, resident or not, a child automatically has rights in the territory of his or her father in which the metamorphosed bodies of their agnatic ancestors are stored (Peterson 1986:70).
Generally speaking, this identification is not so much with one's father as with one's paternal grandfather, who passes wholly into his dreaming at the time his grandchildren move into full maturity. Patrilineal descent is thus descent from a man in his totemic aspect, and from the country itself, which is an infinite source of ancestral 'stuff'.
We need to be clear about kinship in Aboriginal societies. Scheffler, somewhat in the manner of Durkheim and Mauss (1963), insists that kin-classes are essentially familial or genealogical and are then metaphorically extended to other people and things (1978:529-530). But making everything derivative of kin classes is mistaken, in the sense that it is precisely what Aborigines do not do in reckoning descent from an ancestor; the totemic ancestor is not derived, but is the origin of descent--not only for human beings, but for all species under a totemic sign. As von Brandenstein says, Aborigines express 'relations of any kind, not only those of kin, by using relationship terms' (1982:4). Indeed, while kin class statuses may be stable, the 'genealogical relationships' that fall under them are not exhausted by simple 'consanguinity' (genetic connection), which is one of a number of ways of registering common substance between self and other within the scope of belonging to (totemically defined) country (e.g. Dousset 2003).
The importance of this is not restricted to patrilineal descent, because, ultimately, all relationships between people, and between people and their nonhuman totemic correlates, are grounded in country. T. G. H. Strehlow's description of landscape as 'the handiwork of ancestors' from whom all people reckon descent is compelling. As Strehlow puts it, a person sees in country 'beings ... he has known in his own experience as his fathers and grandfathers and brothers, and as his mothers and sisters. The whole countryside is his living, age-old family tree' (1947:30). It is also the 'family tree' of other species that people routinely refer to as kin--a practice which underpins the practice of 'looking after country' to ensure ongoing reproduction, which is not restricted to patrilineal members of an estate group, but may involve all manner of negotiable obligations to countries other than one's paternal grandfather's--for example, the estates of one's other grandparents, or perhaps the estate where one was conceived or born, or where a parent died, or which is connected to one's own estate through the same totem, or from which one obtained a wife (or some combination of these).
While there are 'multiple pathways' (Myers 1982:188) leading to connections to country, there is a particular emphasis on 'complementary filiation' (Fortes 1969:98)--that is, rights and duties counterbalancing those attendant on patrilineal descent and directed towards one's mother's relatives and their country (or countries) of orientation. These rights and duties, sometimes called 'managerial' or 'custodial', vary in character and intensity across the continent (Peterson 1986:61), but complementary filiation of one kind or another does appear to be universal. It is clearly related to dualistic classification and the general principles that organise moieties, sections and subsections. Pared to its simplest dimension, complementary filiation is the recognition that there are always two 'lines' through which people connect to each other or to land and totems, and that these lines are 'opposed' or in 'tension' (Peterson 1969:27). Where matrimoieties are explicitly articulated, this recognition may be tantamount to double descent (Radcliffe-Brown 1951a:40), although the relationship between double descent (patrilines and matrilines) and rights in land is variable. While patrilines are explicitly tied to estate formation, matrilines have for the most part been documented as merely 'social' (non-territorial) although I explain later in this paper why that may be misleading. Matrilines might or might not be explicitly associated with totems, but they are often characterised in terms of shared 'flesh' (Elkin 1933:137) or 'physical and temperamental likenesses' (Meggitt 1962:193). Ties to mother's father's country are strong, but are not equivalent to ties to father's father's country; hence the basic distinction between patrilineal 'ownership' and matrifilial 'custodianship'--although custodial ties can be converted to those of ownership in appropriate circumstances (Sutton 2003:4-5). The strong desire by men to pass on knowledge of country and sacra to both sons and nephews, as for example documented by Myers (1986:66), is likely a general phenomenon.
By way of contrast, ties to country by birth or conception are a direct link between person and place through 'reincarnation' from a totemic ancestor--a relationship not ideologically mediated by filiation or descent. As Peterson notes, the strength of a tie based on birth or conception 'varies from a high level among desert peoples to a much lower level among those living in the tropical woodlands' (1986:60) and even where such ties are strong, they tend to be so only when there is a correspondence between birth or conception locations and patrilineal estates. On the other hand, birth and conception ties represent one way in which estate configurations alter, either through full blown claims to neighbouring areas or through the conversion of custodial rights in country to those of full ownership. In the latter case, men who dwell off country--typically in the country of a wife--may have children born or conceived on 'alien' estates, resulting in full recruitment to the associated estate groups. As Peterson observes, this effects a conversion of 'second order interests into patrilineal interests' (1986:72) based on identification with local Dreamings. Ultimately, however, all interests are based on such identification (which is not to say that every interest is practically of equal strength).
AN EXEMPLARY CASE AND ITS TRANSFORMATIONS
The following account of composite totemic identity was given to T.G.H. Strehlow (1971:596) by a Western Arrernte man known as Patika:
Itakuba was the first kangaroo ancestor who originated at Ajaii. Itakuba begat Kantowara. Kantowara belonged to the snake totem of Winbarku [by conception], but he was a kangaroo man too; and when Itakuba died, Kantowara became the ceremonial chief of Ajaii. Kantowara married a woman from Lukaria, and begat me. My conception site is Lukaria and I am a jiramba [honey ant] man like my mother; but I am also a kangaroo man. In a footnote, Strehlow explains that Patika was in fact conceived at Lalta, a place near Lukaria associated with a marsupial mouse dreaming, but Patika claimed a relationship to the ritual sacra of his mother's conception site (Lukaria) because 'it was a more important centre than his own'--although the ethnography also indicates that a person's totemic identity is partly configured by a person's maternal conception site (Carl Strehlow 1908:57-58), so that Patika can say that he is simultaneously kangaroo, like his father and father's father, as well as honey ant, like his mother. He was also a mouse man, although Patika strategically conflated mouse and honey ant as part of a single estate. In all cases, the relationships are articulated as common substance: Patika is kangaroo; is honey ant; and (presumably) is mouse. Hence, he shares substance with his father, his mother and himself, together with the relevant species and sites. Significantly, the stated inheritance of Patika's father's identity came not through his father's conception dreaming (snake), but from the original dreaming of his father's father, whose identity is wholly mythic or 'other worldly'. Hence, his overall totemic standing is tripartite, with a patrilineal intergenerational stem (father's and father's father's dreaming) existing alongside complementary filiation (mother's dreaming) and self-identification (own dreaming). This is not to say that the three elements are of equal weight relative to stages in the development of the person; but as a mature man, Patika clearly privileged his link to his paternal grandfather.
As Patika's conflation of totems indicates, the three elements in this picture are not simple givens, but are outcomes of life trajectories within an overall system of reproduction involving pregnancy and birth, forms of nurturance and growth (including initiation), and mature life-trajectories in adulthood and old age. I have elsewhere documented the ontological dimensions of such trajectories as a dialectical relationship between 'women's business' and 'men's business' that articulates the emergence of totemic identities from country, their egoic embodiment and growth as 'flesh', and the assumption of adult responsibilities in the nurturance of kin and country (Morton 1987; 1989). A person is conceived from a dreaming and, through childhood and early youth, becomes alienated from this telluric source or 'ground', having entered the female domain of pregnancy, childbirth and the cultivation of healthy children, together with associated ritual responsibilities to look after ('lift up') country. While young women are prepared to take their mature place in this realm, young men undergo initiation into the male domain, which is at various points marked by a symbolic discarding of ties to their female kin. The career trajectory thereafter sees a young man become what Strehlow calls a 'citizen' of his ritual estate (1947:112), at which point he becomes responsible for ritual sacra identified with country. Certain of these sacra are referred to as people's second bodies and identification with them is symbolised by an ongoing divestment of corporeality--a kind of mortification that reinscribes the deceased in country. While women lift up the country, men lay it down, completing a cycle of life and death through the containment and externalisation of 'flesh'. Hence, as Stanner (1979:132) states, country encompasses 'the dead, the living, the unborn'
This cyclical pattern of development and gender-defined responsibilities is characteristic of central Australian groups, which is not to say that there are no critical differences of emphasis from place to place (both within and across language groups). It defines The Dreaming as a locus of ancestral power (The Law), with all new life ultimately coming from a landed ancestral realm that authorises the future. It can be taken as an Aboriginal view of 'tradition' ('following The Dreaming') which is arguably universal across the continent, albeit in uniquely inflected regional idioms.
Male initiation, for example, was found throughout Australia and is everywhere connected to the reproduction of interdependent estates. While there are transitional zones between forms of ceremony, these boundaries do not mark fundamental differences in the basic form and function of initiation ritual as a procedure for disciplining young men and familiarising them with country. Such a ceremony is often a very large collective event and, as Kenny (2012) has shown, instantiates a regional polity, which for native title purposes can be thought of as a 'society' as 'a body of persons united in and by its acknowledgment and observance of a body of law and customs' (Yorta Yorta, HCA, para. 49). Consistent with the universal distribution of initiation is a universal division of the world into men's and women's business, although again there are some elaborate differences from place to place (e.g. Hamilton 1980). Gendered worlds are marked by prominent totems in some areas (e.g. Howitt 1904:148-151), but not in others; but initiation is everywhere the same thing an exercise in 'man making' tied to territorial imperatives.
VICTORIA AND SOUTH-EASTERN SOUTH AUSTRALIA
With all this in mind, I now look at the early ethnography of south-eastern Australia to see how universal principles of descent, filiation, totemic identification and tenure are refracted there in fragmentary accounts. In an as yet to be completed comprehensive survey and analysis of large parts of south-eastern Australian ethnography, Wood (n.d.) has made a number of proposals in this regard--notably that patrilineal estates were a universal feature of the region. In support of his proposition, he discusses a number of explicitly and implicitly documented cases from widely dispersed areas in that region. I deal with some of his examples later in this paper, but I concentrate initially on Victoria, which is absent from Wood's survey.
While Howitt was often confusing in his depiction of the relationship between rights in land and descent, he generally documented local organisation in terms of father-son ties to minimal tracts of country ('hunting grounds') in groups having both 'male descent' and 'female descent' (Sutton 2003:39-42). In the case he knew best--the Kurnai of Gippsland he described dialect groups as 'clans' that were portioned out into local 'divisions and subdivisions', with 'each subdivision having its own tract of hunting and food ground' occupied by 'an old man, his sons, married or unmarried, with their respective wives and children". By way of illustration, he noted the example of a group named 'Bunjil-baur, the people who 'lived on Raymond Island in Lake King and who not only claimed the island, but also all the swan eggs laid upon it, as their own exclusive property'. Every man in this group 'received the name of Bunjil-baul at his initiation' and, while the most senior man 'had authority over the others, ... they were all collectively Bunjil-baur with rights and interests in the island that were vigorously protected. Combinations of such subdivisions formed a division 'and the aggregate of the divisions formed a clan' (1904:73-74). Although Howitt confused matters by calling a dialect group a 'clan', a term more suited to his 'division', dialect affiliation was also likely inherited from one's father. All up, Howitt documented nineteen named divisions across Kurnai country (1904:76-77), but a more recent reconstruction suggests there were as many as thirty-one (Wesson 2000:20-39). In his most definitive statement about these areas, he stated: 'One of the Kurnai belongs only by birth to that group of people of the local organisation to which his father and father's father belonged' (1904:270)--although his documented examples are few (Keen 2004:279).
The evidence suggests that this norm of patrilineal descent was common to Victorian groups. Curr's description of the Bangerang of the Murray-Goulburn district is somewhat equivocal, but he describes sub-tribal estates as 'patrimonial property' that was 'owned by individuals' and 'descended to their heirs' (1965 [18831:111). Howitt's (1904:309-312) complex description of Kulin rights in landed property at Mount William, a stone quarry in central Victoria, similarly lacks any explicit statement about patrilineal descent, but it is clear that core ownership of the area had been inherited by a son from his father (McBryde 1985:270). More transparent is Dawson's (1881:7) description of Aboriginal tenure in Western Victoria:
The territory belonging to a tribe is divided among its members. Each family has the exclusive right by inheritance to a part of the tribal lands, which is named after its owner; and his family and every child born on it must be named after something on the property.... When the father of a property dies, his landed property is divided equally among his widow and his children of both sexes. Should a child of another family have been born on the estate, it is looked upon as one of the family, and it has an equal right with them to a share in the land, if it has attained the age of six months at the death of a proprietor. This adopted child is called a 'woork', and calls the owner of the property by the same name.
A quite explicit emphasis on patriliny can be found further west along the coast to the mouth of the Murray River in South Australia (Berndt and Berndt 1993:25-30).
Dawson's account for western Victoria suggests that the relationship between patrilineal rights and birth rights is one of notional equivalence, but he also suggests that the two would normally, if not invariably, coincide. It is possible that the inheritance of portions of country by daughters was tied to the recruitment of affines to local groups, which in turn may be related to the adoption of children born on country. At any rate--and contrary to the claim made by Clark (1990) that estate groups recruited through matrilines--there is no doubt that western Victorian local groups were basically organised by patrifiliation (Madden in press), in spite of there being principled exceptions to that rule. Such exceptions likely obtained elsewhere in Victoria. For example, Howitt notes that one man who inherited Raymond Island from his father was born in another country, Lake Tyers, and regarded it as 'his country by birth'; and the same man was forbidden to marry a woman from that area because it was his mother's country (Howitt 1880:226).
The significance of 'mother's side' was likewise accentuated in Howitt's account of rights in Mount William (Kulin, central Victoria), because the owner of that area regularly deputed care of the place to 'the son of his sister' (1904:311). Yet more telling is Howitt's account of Gippsland initiation, where he describes in detail the selection of a novice's ritual guardian--a man who must be the novice's '"own," or "tribal," mother's brother's son' and belong 'to that local group of the tribe with which the [novice's] father's group intermarried.' He adds that guardians are selected after a great deal of 'genealogical discussion' by elder women and enquiries as to the location of the estates of novices' maternal grandfathers, and emphasises that 'it was by this knowledge of the locality of the individual that the particular [guardian] was allotted' (1904:622). In Howitt's time, the guardians were referred to in Aboriginal English as 'policemen' (1904:618-619) and Mathews, who witnessed a Gippsland (Bidhawal) ceremony of the same type, stated that they must be drawn from 'the brothers, actual or titular, of the women from whom the novice could ... obtain a wife' (2007 :210).
In the early Victorian ethnography, then, one glimpses something of a tenure system that is grounded in the general principles outlined earlier in this paper: there is evidence of a primary connection to the country of one's father and father's father, which initiation serves to cement; a secondary, but complementary, connection to mother's (or mother's father's) country that is aligned with territorial alliances and intermarriage; and a further connection by birth, which may complicate the system of bilateral links because of possible disjunctions between place of birth and country of inheritance.
The relationship between these principles and totems is often more obscure, especially in view of there being different dual totemic systems across Victoria, with western Victoria having totemic matrimoieties, central Victoria having totemic patrimoieties, and eastern Victoria having only an unusually amplified form of totemic gender moieties (Howitt 1904: 120-129, 148-149). But a different kind of totemism is implicit in Howitt's description of all Kurnai having 'received the name of some marsupial, bird, reptile, or fish, from his father, when he was about ten years old, or at initiation' (1904:135). Howitt thought that these totems were a 'survival' of an extinct moiety system, but the manner in which they are bestowed appears to parallel the giving of paternal locality names at initiation. Bulmer also reports that 'a child had the same totem as its father' in Gippsland and he believed that such totems 'were selected because of their plentifulness in a district' (1999:10). Howitt came to the related conclusion that the totems came to be 'segregated into localities' through 'the influence of paternal descent' (1904:269), but there is little information on their function beyond the fact of them being protective 'elder brothers' (Howitt 1904:135). While the arrangement echoes that of totemic patrilodges in other parts of the continent, there are insufficient data to draw detailed comparisons. It should also be noted that the naming system in Gippsland appears to have implicated totemic ancestors to whom the named were matrifiliated (Bulmer 1888:17; Howitt 1880:190-191; 1904:493).
Howitt's account of Gippsland initiation (1880:192-199; 1904:616-637) and its relationship to totemism and local organisation is one of the more detailed we have for southeastern Australia. Although the importance of 'sky gods' in south-east Australia has tended to dominate relevant literature (Hiatt 1996:103), it is evident that initiation, in Victoria at least, remains tied to the parcelling up of country into patrilineal estates and to the regional interlocking of these through alliance and complementary filiation. It is also fairly clear that throughout Victoria--indeed, throughout the whole of south-eastern Australia--the basic arrangements of the ceremonies were universal, exhibiting what Howitt called 'principles common to all' (1904:638).
The Gippsland material also suggests that the opposition between 'mother's side' and 'father's side' is correlative with the opposition between 'flesh' and its 'mortification', with the deepening of patrilineal ties to country being accompanied by esoteric masculine ordeals associated with male gerontocratic authority. This is partly evidenced by the deployment of avian gender totems during initiation, where initiands had to act the part of the male species, the southern emu wren (Howitt 1904:623), a creature noted for marked sexual dimorphism in immature birds (Pizzey and Knight 2007:348-349). This contrasted with the female totem, the superb fairy wren, which not only lacks such early dimorphism, but is also noted for the way distinctive adult male plumage periodically reverts to a more female form (Pizzey and Knight 2007:340). The female wren is also remarkable for the retention by breeding pairs of their young male offspring to assist with the raising of subsequent broods. But, while young male fairy wrens remain in the world of 'women's business', retention of young males for cooperative breeding among emu wrens is rare (Maguire and Mulder 2004:590). It is evident that Gippslanders saw in this contrast a model of initiation as a passage from female to male, from 'mother's side' to 'father's side,' and from incest to exogamy in a network of reproductively interdependent territories. In fact, such gender totemism, although not restricted to the pairing of wrens or necessarily reported as being associated with initiation regimes, was widespread across south-eastern Australia, stretching across Victoria and into parts of South Australia, New South Wales and Queensland (Howitt 1904:150-151; Elkin 1933:131-134).
NEW SOUTH WALES AND SOUTH-EASTERN QUEENSLAND
Howitt and Fison (1883:34; 1885:144) grasped that there was tension or 'hostility' between matrilineal descent and patrilineal descent, although they set this out in speculative evolutionist terms and failed to link it to totemism and ritual practice across the board. In their terms, 'mother right' was synonymous with 'social organisation' and the broad organisation of 'nations' or 'tribes' into moieties, while 'father right' was synonymous with 'local organisation' and with the narrow interests of (what we now call) estates. Ironically, Howitt made the important general observation that it was the men of one moiety who invariably initiated young men from the other moiety and that this was closely related to the territorial map of a large region--'it is the men as a whole, representing the local organisation, who control and conduct the ceremonies' (1884:435). Yet the ceremonies evidently instantiated wide ranging polities through affinity and alliance and dramatised the displacement of women's more narrowly based control over their young male kin. Howitt (1904:640) later remarked on this himself:
The universality of the practice that the guardians of the novice are of the relation to him of sister's husband, or wife's brother, is clearly connected with the almost universal practice of betrothal, and exchange of sister for sister, in marriage. As, moreover, the boy is initiated by the men of the intermarrying moiety of the tribe other than his own, those men of the group from which his future wife must come are naturally suggested as his guardians and preceptors in the ceremonies.... Thus the novice, who is taken from the protection of his own kindred during the ceremonies, is placed in that of the kindred of his future wife, whose interest it is that no harm shall come to him.
The idea that a young man is 'initiated by the men of the intermarrying moiety' raises the question of how such a general phenomenon is articulated with the totemic moieties and sections that characterised much of south-eastern Australia. Moieties are broad superstructures and different types (patrilineal and matrilineal) can all be accommodated by a common territorial pattern based on patriliny, complementary filiation and birth. Mathews (1896:153) documents an example in southern Queensland (Kamilaroi) where ceremonial guardianship involved the painting of novices and was articulated in terms of matrilineal sections:
Say, for example, one of the novices belongs to the class Kubbi; a guardian is chosen for him from among the young men of the class Ippai. This man and his sister Ippatha [the feminine form of Ippai] then paint the boy Kubbi.... A Kumbo man and his sister Butha paint a Murri boy; a Kubbi and Kubbitha paint an Ippai; and a Murri and his sister Matha paint a Kumbo novice.
In each case, the boy is painted by a brother and sister who, according to the logic of the section system, fall under the categories of brother-in-law and wife (cross-cousin) to the novice. This in itself is unsurprising, but it raises further questions about totemism, because Kamilaroi sections were coordinated with totem clusters. Mathews does not state that the painting itself was totemic, let alone matri-totemic; he refers rather to daubed patterns being characteristic of particular 'tribes' and regions. How might these regions be correlated with totemism and a pattern of patrilineal estates?
The first thing to note is that, while some have argued to the contrary (Beckett 1959:206; Elkin 1953:417; Keen 2004:285-286; Macdonald 2011a:72), there is no good reason to believe that patrician countries were not part of the traditional tenure system in south-eastern groups with matri-totemic moieties and sections. Wood (n.d.) has argued this and he has adduced a welter of data in his manuscript, some of it suggestive, others parts quite conclusive. From this I select just two examples, the first being from Mathews (1912:93), who states that Kamilaroi sections terms, while generally articulated as matricouples (Ippai and Kumbo, Kubbi and Murri), could also be arranged as patricouples (Kubbi and Kumbo. Ippai and Murri):
These men are father and son alternately and camp close to one another, because the son inherits his father's hunting grounds. Instead of one family, ... if a number of people were assembled at a place, there might be several families of Kubbis and Kumbos on one camping ground.... These little knots of people could be called collectively family groups or local divisions. A stranger, unacquainted with their laws of descent, would probably conclude that Kubbi and Kumbo constituted one phratry, and that Murri and Ippai formed the other.
The presence of implicit patrimoieties in areas with explicit matrimoieties may well be a moot point, but Mathews was evidently certain that Kamilaroi 'local divisions' were, like those of the Kurnai, patrifilially recruited.
The second example comes from Beckett (1959:206), who states:
Radcliffe Brown believed that the horde was patrilineal; however, [Wongaibon man Fred] Biggs' information suggests that the local group was not recruited on a unilineal principle. Every man 'owned' a series of swamps, all of which would be adjacent to one another. He shouted their names as he came onto the ceremonial ground and he might sometimes be addressed by the name of the most important one. He was not the sole 'owner' but he had the right to hunt in them and to give others permission to do so, whereas hunting in another man's swamp necessitated giving the owner half the kill. In the only two cases Biggs could cite, his own and that of his wife's brother, the swamps had been acquired from the father-in-law; however, he added that swamps could be acquired from one's father or mother's brother. This information suggests that there were no distinct patrilineal hunting grounds, but father's, mother's brother's and wife's father's grounds were one.
Wood points out that, if swamps were identified only with senior men, this actually supports the idea of patrifilial recruitment, although there is more to it than that. First, the fact of acquiring title 'from the father-in-law' does not contradict patriliny, since Biggs may well have been referring to the way in which he and his brother-in-law received title at initiation, which likely involved intercessions from their fathers-in-law. It is not clear what Beckett means by saying that differently acquired 'grounds were one', but the statement is not inconsistent with men acquiring a suite of strong, but differentiated, rights through patrifiliation, matrifiliation and affinity. It is also the case that mother's brother and wife's father are terminologically equivalent. While this may not mean that men married an actual mother's brother's daughter, it is certainly resonant of remarks about ritual guardians being in the category of mother's brother's son or wife's brother. It is quite possible that this was why Briggs chose to speak about swamps acquired by both himself and his brother-in-law, as if they were allied. Whatever the truth of the situation, there is nothing in Beckett's account to make one think that the inheritance of swamps departs from a pattern of patriliny and complementary affiliation in a scheme of regional alliances.
It is well documented that these alliances were reproduced at so called boras (6)--initiation ceremonies. Regions were invariably emphasised in the way the boras were conducted, with a handful of localised groups camping in the direction of their own areas. As Kenny (2012:147) concludes in her intensive study of Mathews' accounts of these ceremonies:
The ceremonies related people to country and associated spirits. Radcliffe-Brown (1954:106, see also 1923:424) remarked ... that young men who attended a bora ceremony 'learned something of the geography of the region'. The calling out of important geographical features of the participating groups' countries occurred consistently in both public and restricted parts of the ceremonies, and appears to have been repeated each day. This emphasis on place would certainly have served to reinforce the general knowledge about locations of neighbouring countries and who belonged to them. It is also conceivable that, away from home, the public acknowledgment by people from other places would have strengthened feelings of belonging and would have been an assurance of one's land-ownership as well as an affirmation of rules relating to trespass.
While Kenny does not address the question of descent groups, Radcliffe-Brown's fieldwork-informed account (to which Kenny refers) is quite explicit that the names called out in the ceremonies were not regional identifiers, but 'the names of important places in [people's] territory' (1954:106). In other words, they were clan sites (presumably with 'associated spirits').
A clue to how this may have worked in the context of matrimoiety totemism is given by Macdonald, who maintains that a Wiradjuri man 'was (ideally) in the same matriclan as his father-in-law and father's father, both of whom, along with his mother's brother, provided options for augmenting power and prestige.' She adds that strategic 'marriage arrangements could keep men of a matrimoiety within adjacent dharuwaay [estates], thus consolidating territorial and spiritual power in a local division (a cluster of dharuwaay)' (201 la:72).(7) Although Macdonald does not favour Wood's (or my) interpretation of estates as being rooted in a distinction between patriliny and complementary filiation, this is evidently related to Beckett's account for Wongaibon; but Macdonald also draws attention to the position of the paternal grandfather, stating that the target for the relationship between a man and his father's father is one of totemic identification. In a relatively stable cluster of intermarrying estates, any sites that might be associated with matri-totems would thus also tend towards a certain spatial distribution. In fact, Beckett notes cases of such distribution of section-related, matri-totemic clans in the Wongaibon case: 'mallee hen and bandicoot people seemed to predominate around Trida and Conoble; black duck around Keewong' (2003:19).
Another example of father's father/son's son identification is given by Tennant Kelly in her work on south-eastern Queensland--an area similarly known for section-related, matri-totemic clans. Kelly states that a man's 'ideal marriage' is with a woman 'of the same totem as the man's father--which, therefore, brings the man's children back to his father's totem' (1935:470). This account came from Dharumbal man, Sunny Sunflower, who also situated his statement--'I get a woman who is the same [matri-totem] as my father'--in the context of cross-cousin marriage. He suggested to Tennant Kelly that, in a proper marriage, there is not only sister exchange, but also an exchange of matri-totems (Tennant Kelly 2011, Item 54). Exactly what was meant by this is not entirely clear, but given the sense of totem as 'meat' or 'skin' (the adopted English terms for totem), and that matri-totems are grouped into moieties by serial associations or likenesses of physique or temperament (Tennant Kelly 1935:464-465), one can reasonably suppose that children of marriages would have been thought of partly in terms of a mix of maternal and paternal totemic substances (cf. von Brandenstein 1982:148-149).
Tennant Kelly (1935:468) also reported a tripartite naming system for other parts of southern Queensland, with one name being based on birthplace (a 'spirit home' to which one should return after death) and the other two on patrifiliation. Only the patrifilial names appear to have been totemic and the examples given, derived from emu. possum and tiger snake, indicate that they were from the father's matri-totem and 'given at puberty by the father's mother'--although her Kooma informant, Dolly Button, like Sunny Sunflower, shared her matritotem with her paternal grandfather (Tennant Kelly 2011, Item 182). Hence, while children belong to the mother's totemic moiety, they also have a determinate relationship with the father's. Although the full meaning of this is puzzling, the derivation of a totemic name from one's father is clearly correlative with the desired cycling of a matritotem through alternate generations in the patriline.
It is also consistent with the narrow regionalisation of specific totems mentioned by Macdonald and Beckett, in relation to which Tennant Kelly provides certain clues about the totemic character of landscapes. Tennant Kelly was also told that moiety-grouped totems 'worked' cooperatively in The Dreaming ('they travel together in olden time'), adding that '"work" has ... a special significance--a man who says the "prayers" and enacts the rites for increase ceremonies on a stretch of country was said to "work" that country.' She recorded numerous instances of site-based ceremonies, giving published examples from the Warrego River (central south Queensland) and Maryborough (on the south-east coast) (1935:467-468), although, in the absence of detailed mapping, it is not possible to ascertain how totemic sites were territorially distributed or how rights in them were coordinated. However, given the ideal coordination of totems through marriage, there is every reason to suppose that primary responsibilities for totemic site-sets would have been patrilineally articulated, but supplemented by complementary filiation and perhaps birth.
Increase centres, and by implication an ethic of 'looking after country' ('work'), were earlier documented for north coastal New South Wales by Radcliffe-Brown (1929), who found sites there to be located in patrician countries, although he was also told in one instance that 'a man gets the [totem] of his father and a woman that of her mother' or 'mother's brother' (1929:408). He also recorded section totemism from a Bundjalung area on the Queensland border and found that certain marsupials (kangaroo, euro, rockwallaby and pademelon) were divided between sections not by species, but by gender, these divisions corresponding to right-way marriages by section category (1929:413414). Such pairings are not unusual in Australia (von Brandenstein 1982:98-108) and they are variants of the general idea of complementary opposition--'same but different' in Aboriginal idiom--that Radcliffe-Brown (1951 b:20-21) later discerned to be comparable to the gendered pairing of 'yin' and 'yang' in ancient China, as well as the Heraclitean notion of 'polemus' ('strife'). These in turn are reminiscent of Howitt's 'hostility' between patriliny and matriliny, but as Radcliffe-Brown noted, Heraclitus's paradigmatic example of 'strife' was the robust union of a mortise and tenon joint. While mortise and tenon exert pressure against each other, "they combine to make a unity,' just as yin and yang combine to form the Tao as 'an ordered whole' (RadcliffeBrown 1951b:21).
Perhaps, then, the best descriptor for complementary opposition in south-eastern Australia is not 'hostility', but 'tension.' The data on totemism in this area, while often incomplete, variable and perplexing, clearly suggest the pervasive presence of 'ordered wholes' formed by the tension between male and female principles. Taking his cue from Howitt (1904:270-271), Wood (n.d.) aptly refers to this, and its corresponding idea of double descent, as 'a fine mesh'--a net that is at once sociological, territorial and totemic.
CONCLUSION: STRUCTURING CONTEMPORARY EVIDENCE
In his original Yorta Yorta judgement. Olney J., after sporadic references to the Bangerang ethnography of Curr, stated that the 'evidence does not support a finding that the descendants of the original inhabitants of the claimed land ... have continued to observe and acknowledge ... the traditional laws and customs in relation to land of their forebears' (para. 129). While Olney J's judgement did not hinge entirely on claimants' fidelity to the ethnographic past, where claims have been litigated in 'settled' Australia since that time there have been hardly any positive determinations of native title.(8) In such cases, judges routinely follow Olney J. and the subsequent High Court appeal judgement to find that claimants contemporary laws and customs are 'simply too different and too little' (Bidjara, para. 621), no more than 'attenuated or transformed fragments' (Bidjara, para. 672) or 'not recognisable as a normative system of laws and customs as explained in Yorta Yorta' (Yugara para. 77). Given native title case law in Australia, and the very visible shifts in the workings of Aboriginal society in 'settled' areas, it is very difficult for contemporary systems of laws and customs in south-eastern Australia to be recognised as such in litigated claims.
The situation is different in relation to claims mediated through state governments. In Lovett, a claim to parts of western Victoria determined by consent, North J. observed that, in looking at the suitability of a mediated agreement, the Federal Court 'is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing' (para. 37). He went on to say that mediation was not intended to 'substitute a trial ... conducted by State parties for a trial before the Court' and that 'something significantly less than the material necessary to justify a judicial determination' should be enough to 'satisfy a State party of a credible basis for an application' (para. 38). While much depends on the good will of state governments in mediated claims, assisting anthropologists also need to accurately construct their models of contemporary laws and customs and their relationship to original systems of tenure. The 'at-sovereignty' principles outlined in this paper may provide a useful guide to such modelling.
Perhaps the most evident and consistent characteristic of south-eastern claims is that they are framed in terms of cognatic descent. Sutton (2003:228) has outlined what he calls 'the basic transformation' involved in a shift from differentiated bilateral links to country, together with forms of principled exceptions to the norms, to recruitment to country groups that is 'simply cognatic'. He continues:
The transformational relationship ... is relatively uncomplicated. It involves only two major steps. First, there was an expansion from groups made up only of patrifilially-related cognates (perhaps plus complementary matrifiliates), to groups made up of both these and certain other descendants of their female members including their grandchildren and beyond. Second, the privileging of patrifiliation dropped out, leaving the system simply cognatic.
Sutton suggests that this shift can be attributed to a number of factors--among them, depopulation, miscegenation (non-Aboriginal paternity), increasing instability of marriages, a decline in men's status and a correlative rise in women's, and the increasing possibility of personal choice in relationships. But he also draws attention to the importance of sustained residence away from estates, thus making them 'much more blurred in definition' or causing them to be 'effectively amalgamated', sometimes under the general aegis of what he calls a 'new tribe' recruiting its members 'via the cognatic descent group' (2003:223). The phrase 'new tribe' does not refer to an entirely novel entity, since 'tribes' or language/dialect groups (or clusters thereof) have long term provenance; it refers instead to the formal incorporation of such entities in post-colonial circumstances as amalgams of 'families of polity' and descent groups (Sutton 1995:47).
Small estates no longer exist in south-eastern Australia, although there often remain vestiges of the old rules articulating differentiated bilateral links. It is from one such case that I have taken the lead title to this paper--'mother's blood, father's land'--a phrase that was mentioned to me by a claimant in south-central Queensland and stated as a rule. When I asked her what the rule meant, she replied: 'Simple! Women have the babies and the men were the warriors'--an implicit reference back to 'man-making' ceremonies, the alliances they served and the diacritical peculiarities of 'men's business' and 'women's business'. I have stressed here that this opposition is integrated. It is not a question of one thing but not the other, but of one thing and the other, and this conjugation has implications for understanding cognatic descent in contemporary systems of tenure. In particular, it implies that the distinction between 'father's side' and 'mother's side' should not be taken as a simple, radical distinction between local identity and social identity (e.g., Elkin 1933:136-143). To the contrary, traditional patriliny and matriliny (or matrifiliation) at sovereignty were both social and local, but at different levels of scale and distribution--hence principled exceptions to patrilineal recruitment to local groups through matrifiliation (or affinity, birth and conception). Cognatic descent is thus not a major shift in regional group dynamics; it emerges when estates, largely stripped of their function as 'hunting grounds', lose definition in a regional context, a phenomenon that may also be accompanied by increasing secularisation of connection to country (Macdonald 2011b).
Cognatic shift does not prove connection to country in itself. In the Western Australian Bennell case, for example, where a positive finding was made for the claimants, this was rejected on appeal because the primary judge had not properly considered whether the group had persisted as a landed entity (Bodney, para. 73). There was much discussion of cognatic shift in Bennell, which the judge characterised as a shift from 'a general rule of patrilineal descent, subject to exceptions' to a situation where 'succession to mother's country is no longer the exceptional case' (para. 773). The problem with this framing of cognatic descent is not only that it exclusively downplays 'mother's side' as 'secondary', as opposed to partially levelling it as 'complementary;' it also misconstrues the original location of title. Underlying title exists in The Dreaming and the general system of Law grounded in, and instantiated across, ancestral country. Estates and estate clusters are articulated only as proximate titles, in the sense that they have been beneficially distributed through 'the cultural and jural constitution of a particular area of land' (Sutton 2003:116). In a situation of 'new tribes,' the general cognatic structure of families belonging to wide areas is amplified, but there is not an 'increase' in succession to country through mothers. It is only that, with the fading of estate boundaries, 'father's side' and 'mother's side' become (in the vernacular) 'bloodlines' of equal weight.
It has been suggested that cognatic descent groups, articulated as long range genealogies starting from apical ancestors identified by language group territory, are an 'effect' of native title (Correy 2006; Smith 2008)--perhaps even a 'fallacy' created by the 'uneasy application' of descent phrasing to groups that have recruited by 'ambilineal affiliation', but which 'are also derived from common history, co-residence, economic cooperation, and so on' (Dousset 2003:22-23; and see Macdonald 2011a:72-76). This is similar to Scheffler's argument about Aboriginal people not having true descent lines and suffers from the same problem, because it fails to properly register how a group's source is in country and how original ancestral identification continues as the transfer of substance ('blood'). Cognatic descent groups have ancestors who are documented or otherwise known through oral history to be 'of particular localities--and the presence of these groups and their 'founding couples' was first documented long before the native title era (Barwick 1971:296-297; Eckermann 1977:291). With ongoing connection through time, certain lineages (not all) retain privileged connections to these ancestors and communicate specific local identities. Bloodlines are thus assimilated to country through each generation.
Aboriginal people in the south-east commonly refer to country as 'home', not necessarily in the sense of where they dwell, but as the place where they feel most comfortable, safe and spiritually or emotionally connected. This is associated with the idea that the spirits of 'the old people' remain in country, still connected to what they left behind--places such as middens, artefact scatters, fish-traps and scar trees, but also totemic sites, old ceremonial grounds or other places known to be spiritually charged. While much, if not all, totemic knowledge has fallen into abeyance, spiritual agents are widely known to be watchful and active, regulating access and use of country through extraordinary occurrences taken as signs of intent. There is also generally an expectation that people who belong to a country should be buried there, implying that the deceased must return home to their relatives if everyone is to be at peace--something that Macdonald (2008:132-133) has documented in detail for Wiradjuri. Bloodlines are thus circular; they begin in country and they end in country--a circularity that is not easily grasped through a 'family tree'. Landed groups of this kind generally have characteristics that are rooted in, if hardly identical to, past practice --for example, descent group exogamy, expansive recognition of collateral relatives, distinctive classificatory use of kin terms, and gendered authority exercised by respected family elders (Sutton 2003:226-227).
Stanner once wrote that there were three 'fundamental' Aboriginal 'postulates' about the world: 1) that 'human corporeal life was indivisibly in pair with spiritual life'; 2) that 'the corporeal and spiritual elements were believed to cohere so indissolubly that, as a necessary condition of the continuity of life, each person was with or of a locality, or a locality with or of him or her'; and 3) that "for each and every person of a clan or similar group there was unity of title, of possession, of interest and of time (except that the unity of time extended to the unborn and the dead as well as the living)' (Stanner and Martin 2001:108-109, original emphasis). In my experience, cognatic descent groups in south-eastern Australia can generally be made out to fulfil these conditions of what Stanner called 'thinking black' (1979:24), even if evidence for it might be reckoned as fragmentary or attenuated by judges bound by the High Court's parsing of continuity in Yorta Yorta.
(1.) This paper was first prepared in short form for the workshop 'Conceptualising the "South East" of Aboriginal Australia,' held at Sydney University in February 2014. The workshop was convened by the Centre for Native Title Anthropology (CNTA) at the Australian National University and the Department of Anthropology at the University of Sydney, with funding from the Attorney General's Department. This expanded version of the paper was partly written whilst undertaking a three-week funded placement at the CNTA in April 2015. Thanks are especially due to Cameo Dalley and Nicolas Peterson for facilitation and advice at the CNTA, and to Ray Wood, who kindly provided me with extremely helpful drafts of his yet-to-be-published manuscript on southeastern Australia, as well as useful comments on this paper. Thanks are also due to two anonymous referees who helped me clarify a number of specific matters.
(2.) 1788 or soon thereafter (the date changes from area to area). Claims often involve the concept of 'effective sovereignty', meaning the time of early contact and settlement in a claim area, which tends to coincide with the earliest corresponding ethnographic documentation.
(3.) This work has involved becoming most familiar with the ethnography of parts of north-eastern New South Wales, Gippsland (eastern Victoria), south-western Victoria, south-eastern Queensland and central coastal Queensland. Fieldwork was undertaken in three of these five areas.
(4.) The Yorta Yorta case went through three incarnations: 1) the original claimant application to the Federal Court for a determination of native title, which failed; 2) an appeal against the decision to the Full Court of the Federal Court, which was dismissed by majority (two to one); and a final appeal to the High Court, which was also dismissed by majority (five to two).
(5.) Especially since Yorta Yorta, claims are now generally litigated as a last resort and only after attempts to negotiate settlements have failed. State and Territory governments have effectively become arbiters of native title in Australia and this has largely arisen because of the adverse findings in Yorta Yorta.
(6.) 'Bora' has long been used in Australian (including Aboriginal) English to name the initiation ceremonies characteristic of south-eastern Australia as a whole, although it was originally a Kamilaroi label (Howitt 1904:593-595). The term is used widely from Victoria to Cape York.
(7.) At this point, one anonymous reviewer pointed out that the word for 'estate' should be spelt as dhawuraay, derived from the word dhawun (ground, soil, dirt), and that the term would be equally applicable to a cluster of estates (cf. Macdonald 2011b:308).
(8.) I originally wrote that there were no such determinations, but one anonymous reviewer has pointed out that the successful Barngarla claim in South Australia, determined in 2015, qualifies as an exception.
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NATIVE TITLE CASES
BARNGARLA. Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015/ FCA 9 (22 January 2015).
BENNELL. Bennell y Western Australia 120061 FCA 1243 (19 September 2006).
BIDJARA. Wyman on behalf of the Bidjara People v State of Queensland (No 2)  FCA 1229 (6 December 2013).
BODNEY. Bodney v Bennell  FCAFC 63 (23 April 2008).
LOVETT. Lovett on behalf of the Gunditjmara People y State of Victoria  FCA 474 (30 March 2007).
YORTA YORTA. Members of the Yorta Yorta Aboriginal Community v Victoria & Ors 1998] FCA 1606 (18 December 1998): Members of the Yorta Yorta Aboriginal Community y State of Victoria (Including Corrigendum dated 21 March 2001)  FCA 45 (8 February 2001): Members of the Yorta Yorta Aboriginal Community y Victoria  HCA 58; 214 CLR 422; 194 ALR 538; 77 AUR 356 (12 December 2002).
YUGARA. Sandy on behalf of the Yugara People y State of Queensland (No 2) (includes Corrigendum dated 2 February 2015)  FCA 15 (27 January 2015).
La Trobe University
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