Consent, Marriage and Colonialism: Indigenous Australian Women and Colonizer Marriages

In 1901, the year of Australian federation, the newly constituted State of Queensland restricted marriage between Indigenous women and non-Indigenous men. These amendments to the Aboriginal Protection Act legislation of 1897 criminalized the informal marital arrangements that criss-crossed Queensland’s cultural and colonizing boundaries. The stated aims of the policy were to “protect” Indigenous women from sexual exploitation and to prevent the birth of “half-castes” or mixed descent children. Yet, as established or de facto marital relationships were considered a greater affront to the colonial/national project than casual sex, police only arrested those who “cohabited” with and openly acknowledged their Indigenous partners.

Two “Chief Protectors” - white men with “knowledge of the natives”- adjudicated over colonizer men’s requests to legally marry Aboriginal women under Queensland law¹. The Protection Act’s implementation created a detailed archive of the official marital negotiations that took place between potential non-Indigenous husbands, police, protectors and the courts. Local policemen assessed and reported upon the husband’s suitability to marry under Queensland’s British-styled marriage law. Letters attesting to his respectability were sometimes written by the man himself, or by a lawyer engaged to write on his behalf. Most applicants were rural workers who were illiterate, semi-literate, or unable to write in English. The Indigenous woman was not required to apply for permission to marry, but the local policeman had to comment on whether the woman consented to the marriage. He was also expected to enquire as to whether she had “a tribal husband” – the term Europeans used for a spouse according to Indigenous law.

In this article, I search for clues about Indigenous women’s strategies for navigating intimate gender relations across contesting societies. When Indigenous women contracted into marital agreements under the colonising regime, it appeared that their understandings of what they were consenting to differed dramatically from the colonisers’. Although the man-to-man nature of Queensland’s state marriage approvals left an archive of correspondence in the masculine voice, the scenarios discussed below reveal vital clues into Aboriginal women’s views and actions. Such marriage narratives involved political and social ideas of “civilisation”, “freedom” and “consent”, all of which - in English translation or not - had multiple, conflicting and shared meanings across cultural and colonising boundaries.

The subject of intermarriage in colonising contexts has drawn increasing interest in recent scholarship, although most studies have been concerned with investigating imperial motives.² Stoler’s influential studies allow insights into the complexities of colonising anxieties over inter-racial desire in Dutch colonies.³ For the United States frontier, scholars such as Sylvia Van Kirk, Peggy Pascoe, Albert Hurtado, Gunlog Fur and Sahila Belmessous analysed shifting policy interventions and people’s experiences of intermarriages on American frontiers, including marriage “au façon du pays”.⁴ Ellinghaus, Henningham, Maynard and Haskins conducted valuable Australian and comparative studies of frontier intermarriage.⁵

Of special theoretical interest is Carole Pateman’s path breaking study The Sexual Contract, which traced the ways in which the patriarchal conventions of the marriage contract had historically underpinned the governance of western societies. The “sexual contract” enabled state control of women and women’s labor; it was “about political rights as patriarchal right and sex-right.” Whereas marriage was conditional upon a performative utterance of “I do” - a voiced consent or agreement –the contract also had to be “consummated” by heterosexual sex.⁶ Using general contract and social contract theory, Pateman argued that such agreements entailed “rights in the property that individuals are held to own in their persons”. In addition to the sexual/marital contract endorsed by the state, Pateman noted the ramifications of the “slave contract”: “The men who (are said to) make the original contract are white men, and their fraternal pact has three aspects; the social contract, the sexual contract and the slave contract that legitimizes the rule of white over black.” While Pateman acknowledged that the “contractual beginnings” of American colonization were premised upon coercion and conquest, she did not analyze the ongoing impact of the “colonizing contract” in shaping the “sexual contracts” of “settler” nations.

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