Keywords

Law is the most immersive of concepts in an Indigenous cultural context. It is a nuanced schema for human existence, and goes beyond a system of justice or governance as might be the conventional and western understanding of law, to shape and give meaning to all aspects of life. Indigenous Law is inclusive of ancestral and creator beings, humans and non-humans, the place world and all elements occurring within the realm of Indigenous people’s sovereign lands and waters. Law provides the logic and rationale for life and puts into relation all forms of being.

But Law is a difficult thing to explain.

It is much greater than words can convey, and often translation into English (and other foreign textual languages) compromises the integrity of Law or simplifies its presentation for those who do not practise it. The translational efforts which carry Indigenous knowledges beyond their worlds of emplacement often occur against a backdrop of inequitable power relations and histories mired by colonial oppression and violence. This bedevils the project of recognition that many Indigenous knowledge holders and activists sustain in the pursuit of self-determination and political and cultural autonomy. Translation often relies too heavily on comparisons of what may be incommensurable expressions and realities, and depends on language that is itself limiting or inclined towards ideas of soft power and esotericism, through which Law is configured as a moral register to support harmonious and peaceful existence. Such is the legacy of popular categories commonly used to describe Indigenous Laws and knowledges, such as folklore, legends, myths and tales.

More commonly, in outsider engagements with Indigenous Law, knowledge is regarded as a soft asset, an add-on or bonus for research purposes or touristification. Indigenous knowledges are deemed discoverable for a curious audience, yet there is no discovery for something that has always existed, nor is this knowledge free for any and all who might like to learn about it. What is met in an encounter with Indigenous Law, and what we hope to convey in this book, is a political realm of intellectual, spiritual and ancestral power. We champion a cognitive and cultural shift among non-Indigenous audiences to reorient themselves in relation to Indigenous Law, by presenting Laws as substantive bodies of knowledge and realpolitik, which are deserving of attention, but which must be respected on particular terms. This is a vital step and might prove to be a useful encounter for those who seek insight on matters of cultural competency, plurality in political life, natural and cultural resource management, being better in relation, ethical imperatives and restitutional justice.

It is in the face of such big challenges and broader political projects that we, as the authors of this book, are attempting to describe Law. The artistry called for in writing this book is one of balancing the enormity of Indigenous Law as a prevailing, yet often marginalised, global presence and the principles and praxis of Law at a local and intimate communal level. The guiding authorial hand of Indigenous leaders and practitioners of Law from Yanyuwa Country in the southwest Gulf of Carpentaria, northern Australia, facilitates a closer encounter with Law, but as we do so, we also recognise that the emplacement of Law renders every account and experience unique. We attempt to carefully navigate this global and local richness by first providing a broader introduction to understandings of Law in Indigenous cultural contexts.

In regard to non-Indigenous and western scholarly engagements with Indigenous Laws and cultures, there are critical questions to be asked around how such knowledges, derived of complex systems of orality and generational transmission, are suitably shared and respectfully met by outsiders. This book is foregrounded by an interest in the perceptions that have been generated by academics, scientists and western legal experts working with Indigenous people, as to the nature and value of Indigenous knowledges. Western scholars increasingly seek out encounters with Indigenous knowledges as a decolonial option or functionalist imperative. There would seem to be an increasing willingness to acknowledge the importance of these knowledges and their associated Law. However, this shift should also carry with it concern as to the risk of displacement for the Law itself.

Knowledge is best shared through encounters, through relational ontologies which occur in situ, where knowledge and Law can be met, shared appropriately and understood as belonging to its Indigenous owners. Yet when Indigenous knowledges are transported and subjected to foreign modes of analysis or scrutiny, are they not at risk of harm in being disconnected from their living cultural and geographical contexts? Knowledge is held by Law, and therefore Law matters. We argue that a crucial bond must be maintained between knowledge, Law and context, and thus encourage a deeper acknowledgement of the attachment of Law to particular people, lands and bodies of water. This is why we maintain a commitment to localising our account of Indigenous Law to the realm of Yanyuwa Country, in the southwest Gulf of Carpentaria, northern Australia, which is home to several of the authors of this book. We do this so as to highlight for the reader that Law demands localised political authority and mastery.

This opening chapter serves to set the overall scene for a sensitive and respectful discussion of Indigenous Law, acknowledging the varied language that is applied to this aspect of life in relation to global Indigenous representations, ranging from Law, customary law, knowledge, tradition, religion and spiritualism. In addition to scoping the emplaced nature of Law, in this chapter we caution against the tendency to universalise. We reflexively acknowledge our own complicity in this tendency to presume commonality in Indigenous Laws, however offset this by providing a detailed ethnographic account of the localised and regional occurrence of Indigenous Law as it maps onto the distinct territory of Yanyuwa Country in northern Australia. In Chaps. 2 and 3, we demonstrate that Yanyuwa Country, like many Indigenous territories, is distinguished by a system of Law that predates and survives the colonisation of Australia.

The expressions ‘Law’ and ‘Country’ are used consistently throughout this book. They have both been widely embraced by Indigenous Australians over the last two decades, picked up as vernacular in remote, rural and urban contexts to describe the two most powerful, and encompassing, aspects of Indigenous cultures (Rose 1992, 2004). In the first instance, Law (capitalised) stands as a linguistic gateway to describe the structures, principles and actions that give meaning to Indigenous lifeworlds as they map out across linguistically bounded and ancestrally created territories. The practice of capitalising the terms Law and Country in this book reflects a preferred Indigenous Australian convention of capitalisation when referring to Indigenous peoples’ sovereign lands and waters. We do this to show respect and to highlight the importance of these words and their meanings to Indigenous peoples. It also signals that both Law and Country are official designations and when used often denote the ancestral lands, waters, culture and ancestral origins of a specific Indigenous language group. This also reflects an understanding that there is no single version of Law, in the same way that Indigenous languages have their territorial range (see https://aiatsis.gov.au/explore/map-indigenous-australia for a fully interactive map of Indigenous language group boundaries across Australian). So, for each Indigenous language group in Australia, one can be assured of as many Indigenous Laws as systems of authority, governance and realpolitik.

The expression Country is, like Law, a capacious term which is used to describe the bounded and known parameters of an Indigenous group’s geographical, ecological, ancestral and socially configured world. Country can be used to describe a great number of physical environments, and more often, when used in reference to a specific group’s lands and waters, its use reflects a relational imperative which distinguishes an inclination towards artful modes of connection, rather than separation; a defining quality of Indigenous knowledge systems more broadly. Kwaymullina (2005) distinguishes Country through relationality and a depth of care on the behalf of human kin,

For Aboriginal peoples, Country is much more than a place. Rock, tree, river, hill, animal, human – all were formed of the same substance by the Ancestors who continue to live in land, water, sky. Country is filled with relations speaking language and following Law, no matter whether the shape of that relation is human, rock, crow, wattle. Country is loved, needed, and cared for, and country loves, needs, and cares for her peoples in turn. Country is family, culture, identity. Country is self.

Law is embedded in Country; it is knowledge, ceremony, the rules for land and sea ownership and ancestral origins. Law is practical and practicable, setting the rhythm of life. It comes from a time of the ancestors and in many Indigenous Australian contexts marks the very beginning, as human and non-human life was made vital and emergent in place. Law can most intimately determine a person’s and community’s field of relations, and immerses an individual into a world of connection, well beyond the human. Many have sought to explain this thing called Law, adopting a range of terms in an effort to do so.

The Language of Law

We take up the particular expression ‘Law’ as a holistic term for a range of elements of Indigenous cultural, social and political life. Law as we engage it also relates to broader aspects of Indigenous cultural life including what might elsewhere be referred to as spirituality and protocol. There are similarities and differences that emerge with the various terminological conventions which we include under the banner of Indigenous Law, such as customary law, religion and spiritualism. It is not our intention to critique these other linguistic preferences, rather to gather them under the holistic banner of Law. Law is a term which carries gravitas and we argue is a language that works to shift perceptions of Indigenous knowledges and political life away from a vision of ‘soft power’ towards one of authority and overarching governance, which lends itself to realpolitik.

Tobin (2014) offers commentary on the state of play with regard to terminology as it adheres to what we are here calling Indigenous Law. Approached in his own work as ‘customary law’, or ‘living law’, he acknowledges the difficulty in defining customary law, and regards it as distinguished by ephemerality, which makes it both open to change and resistant to the constraints of written legal systems (Tobin 2014: xvii). It is described as having a basis in philosophical principles and is expressed in a range of social contexts, from decision-making, legal determinations as they relate to land, sea and resource ownership and myriad forms of ‘rights’, human behaviour and terms of relating, reparations and punishment for contraventions (Tobin 2014). His focus is specifically on the legal status and scope or rather range of applications of customary law for determining and safeguarding land rights, rules of succession, cultural expressions, natural and biocultural resources and knowledge sharing. Customary law is treated as a form of locally-derived governance that deeply informs human rights. This engagement with customary law has many parallels with the approach we take in this book, although as it will become clear in subsequent chapters we challenge the claim to ‘ephemerality’ as a distinguishing feature of Law and instead seek to impress upon the reader the durability and actuality of Law, qualities that are attributable to its simultaneous permanence in Country along with its relational character that determines the praxis of Law at any given moment in time. As instances in Yanyuwa Country will show, Law does respond to present need and changing circumstances.

Disquiet with the term ‘customary law’ is acknowledged by Tobin (2014: 7–8), who turns to the work of Borrows (2010) to explain that “customary law is not the root of all indigenous law, which may also be ‘positivistic, deliberative, or based on the theories of divine or natural law’”. Tobin (2014: 7) notes that this terminology is widely rejected by Indigenous peoples, including one example given, from Quechua activist Alejandro Argumedo, who argues that the term ‘customary law’ is “inappropriate to describe contemporary indigenous legal regimes, which often incorporate elements drawn from non-indigenous sources”. Argumedo favours the term ‘indigenous law’, a term Borrows (2010, 2019) also adopts (Tobin 2014: 7),Footnote 1 for it is considered a more encompassing term, aligning with the full range of knowledge and practice that constitutes Indigenous peoples’ codification of the world and the expression of such through habitual forms of governance, orientation, observation and behaviour. Our justification is similar; we lean towards Indigenous Law because customary law does not exclusively denote an Indigenous origin. In fact, Tobin (2014: 2) explains that “Many national minorities, local communities and ethnic groups that resist adopting the cloak of indigenousness also jealously maintain their own customary legal regimes”, thus suggesting that the specificity of Indigeneity is not a root determinant of what might or might not be called customary law. In this book we are specifically looking to engage with Indigenous Law and Yanyuwa Law.

Levy (2000) writes of the incorporation of Indigenous Law into vernacular and systems of common law, customary law and self-government. These are what he describes as ‘modes of incorporation’. Modes of incorporation have incumbent vocabularies, which in turn have different internal logics, different moral and political implications and different resulting legal rights for Indigenous people. He argues that when incorporated into ‘common law’, Indigenous Law is never fully recognised (Levy 2000: 297). Dodson (1995: 1) astutely observes of the Australian legal system, that “[t]here appears an addiction...[to] isolating components of Aboriginal law in order to place them in the artificial compartments which western legal systems are familiar with. This process of artificially selecting what is legitimate provides compromised justice for Indigenous peoples”. When incorporated into ‘customary law’, Indigenous Law is left somewhere between parallel to or not entirely subordinate to common law. The greatest status comes when self-government forms the foundation for the recognition and understanding of Indigenous Law (Levy 2000: 298). This may be why, in Australia, Indigenous groups have not widely adopted the term customary law, rather adopt terminology which reflects the specific Indigenous language and cultural groups for whom Law is held (Dodson 1995). Examples of this in the Australian context include narnu-Yuwa which is the Yanyuwa language term given to Law, Kuruwarri to denote Warlpiri Law, Tjukurpa for Anangu Law, Manguny for Nyamal Law and Rom for Yolngu Law (e.g., Holmes & Jampijinpa, 2008; Kwaymullina 2005; Morphy 1991; Morphy and Morphy 2009; Pawu-Kurlpurlurnu et al. 2008; Tregenza 2010; Williams 1986). 

Given this pronominal orientation of Law and its encompassing importance relative to specific groups, the preference is therefore to capitalise the term. Indigenous leaders also make distinctions in how they speak of Law and the English terms that are used to explain this body of knowledge and practice to an unknowing audience, which might include religion, philosophy, big politics, decision-making, stories, Dreaming, rules and ethics. Common themes which come through in Indigenous authored explanations of Law in Australia include that Law comes from a time when ancestral beings created the world; Law is capable of mapping all lands and waters, people, animals, elements and spirits; and that Law is heavily instructional and can be expressed in myriad form—from relationships, in painting, in song, ceremony and in story. Law provides answers for everything, is of the past/present and future, yet is not written down and is not free (Bradley 2010, Bradley with Yanyuwa Families 2022; Harrison and and McConchie 2009; Morphy and and Morphy 2009; Myers 1986; Williams 1986).

Christine Black (2011), an Indigenous Australian legal scholar, has dedicated effort to examining Indigenous Law, or what she refers to as legal regimes in New Zealand, the United States of America and Australia. Engaging with Indigenous jurisprudence, her writing delivers a focus on rights and responsibilities to the land, and provides a distinct approach and definition of jurisprudence in Indigenous terms, that emphasises cosmology, ancient Greek law of physics and Djang (a Gagudji language term from western Arnhem Land, northern Australia, meaning ‘primordial energy’). Borrows (2019) takes another pathway, adopting the language of ‘Indigenous ethics’, to shape an examination of the revitalisation of Indigenous peoples’ relationship to their own laws. This is organised around the seven Anishinaabe grandmother and grandfather teachings of love, truth, bravery, humility, wisdom, honesty and respect. Borrows’s (2019) close attention to a single law, that of Anishinaabe—Chippewa and Ojibwe Law—is what provides for a rich and deeply thoughtful presentation of Law organised by an Anishinaabe knowledge and value code, inclusive of dispositions and devotions that shape bodily and emotional encounters and social and political life. This beautifully pragmatic, empirical approach is what inspires our own approach in subsequent chapters. Chippewa and Ojibewe ethics in relation to land title, treaties, education and cultural wounding, through experiences such as residential schools, are explained through the frame of Anishinaabe Law. ‘Law’ becomes the linguistic header for an exploration of philosophy, language, values, politics, action, self-determination, survival and power. In this book we aspire to do the same.

Others have adopted a language of religiosity and spiritualism to explain Indigenous Law, rejecting the view that religion remains an ‘imperial apparatus’ (e.g., Kraft and Johnson 2017: 13; Kraft 2022). While religion is an uncommon expression in discussions of Law in Indigenous Australian contexts, it has found a place in the self-determined language of Indigenous groups internationally, becoming inclusive of ancestral-based beliefs and devotions, alongside contemporary and emergent forms of belief and dedication, such as activist commitments, new ageism, neo-shamanic practices and Indigenised forms of other religions (such as Christianity).Footnote 2 Religion is thus treated as a malleable interface with the world, capable of accommodating changes relative to contemporary need and inspiration. Adopting this distinctive language Kraft (2022) examines Sápmi life in Norway, tracing Sámpi experiences back to the 1970s through the lens of Sápmi religion. Her work, rich in ethnographic accounts, explores the reclaiming of ancestral pasts through a specifically Sápmi religion as a form of instructional, emergent and self-determining Law. This draws connections between religion and identity, engaging the expression ‘religion’ to discuss the organising principles and enactments of knowledge embodied through shamanism, activism and acts of sovereignty, which are considered vivid illustrations of Law and realpolitik.

Performing a similar role to the broad category of Indigenous knowledge, Indigenous religion has emerged a globalising discourse which distinguishes a shared field of cultural interest among Indigenous peoples more broadly, hence its utility in global activist movements organised around care for Mother Earth and peaceful revolutions of Indigenous sovereignty to protect lands and waters. Yet, proponents do acknowledge the many questions which surround the utility of religion as a framework for understanding Indigenous lifeworlds. These concerns include questioning how language of ‘Indigenous religion’ has allowed notions of nature, spirituality and animism to travel beyond their local cultural contexts and in the process become vehicles for universalised and romanticised perceptions of Indigenous cultural practices and lived experiences. Some question the extent to which Indigenous peoples themselves adopt religious vocabularies to distinguish their cultures and practices. This is where the local heavily influences the uptake and applicability of certain language.Footnote 3 As a framework for identifying shared devotions and dedications, religion has also provided the vernacular to speak of autonomy and Indigenous self-determination, as facilitated through a defence and safeguarding of religious freedoms for Indigenous peoples (McNally 2020; Shrubsole 2019; Sumarto 2017).

Religion is treated as a “distinct sphere of human expression that simultaneously stipulates and depends upon hyper-specificity (this rock, this pipe) while insisting upon universal – or at least otherworldly authority and relevance” (Kraft and Johnson 2017: 2). It is therefore regarded as a language capable of explaining the local and emplaced nature of what we in this book refer to as Law whilst also locating this amidst a broad field of potentials for being in the world. Cognate terms for Indigenous religion include the sacred, tradition, care for the earth and Mother Nature, spirituality and animism. Indigenous religion denotes a particular system of faith and worship, morality and ethics and can be contextualised by particular histories of struggle and cultural vitalisation. Yet it is the particularity of emplacement which once again renders uncertain the applicability of a discourse of religiosity as appealing to all or the majority of Indigenous groups. Take, for example, those national contexts largely distinguished by dominant cultures with intellectual histories anchored in the Enlightenment and a tendency to prize scientific rationalism. Here, any discourse of cultural distinction or human rights that pivots on religiosity and spiritualism will struggle and be peripheralised by the political majority which upholds and lauds objectivity and the separation of church (as a stand in for religion) and state or which privileges certain expressions of religiosity. This has been the case in Australia, a nation which Cruickshank (2021) examines in an historical account of religious freedom. She illuminates the field into which a discourse of Indigenous religion might enter, in the Australian context,

…the social norms and laws of the colonies and later nation privileged Christian expressions of religiosity in ways that restricted religious freedom for others. This was particularly true in relation to Aboriginal and Torres Strait Islander peoples’ spirituality…Almost universally, colonists denied the existence of any Indigenous religion, claiming to find no evidence of belief in a supreme being among Aboriginal people. Colonial laws regarding private property criminalised Aboriginal and Torres Strait Islander religious practices by prohibiting access to country, which is the source of Indigenous law and traditional spirituality. The requirement that court witnesses swear an oath to a ‘Supreme Being’ created barriers to the colonial legal system not only for Aboriginal people but for Chinese people, as well as atheists and agnostics who were denied alternative forms of the oath. The removal of Aboriginal children from their families and culture and their internment on Christian missions involved the loss of spiritual knowledge and practice. The purpose of such laws may not have been to prevent religious freedom, but in practice, what was ‘lawful’ and what was ‘unlawful’ in the colonies and later nation privileged Christians and disadvantaged or criminalised other religious practices, particularly those of Aboriginal and Torres Strait Islander people.

The language that adheres to Indigenous cultural life amidst the conditions of coloniality is a powerful reflection and determinant of experiences distinguished by hardship or recognition. Our point being that whichever language is adopted to refer to Indigenous Law is telling both of the histories in which this Law has existed, and also of the political and cultural imperative to safeguard Law in the present. Similarly, the language which is adopted by those outside the practice of Indigenous Laws has implications for Indigenous rights and recognition. Words have the power to shape perceptions and it is against such a backdrop that we have considered our own choice of language.

Indigenous Law as Ancestral and Kincentric

By choosing to settle into the language of Indigenous Law, we honour the Yanyuwa tradition of narnu-Yuwa- Lawfulness. Narnu-Yuwa and Indigenous Laws more broadly have always been in place, for they are attributed to the structuring power of creation and sustenance of the physical and social/cultural world. These Laws have a time depth traced to the beginning. Kwaymullina (2005: 2–3) explains,

It was Law that sustained the web of relationships established by the Ancestors, and the web of relationships established by the Ancestors formed the pattern that was life itself. This pattern – being life – is everywhere; it exists in a single grain of sand, and is formed again by millions of grains coming together to make desert; it is in spinifex and crow and rock and human and every other shape of life’ and is created anew when these shapes come together to form country and when all country comes together to form a continent. Life, and the knowledge of how to care for it, was created at the same time…Country is the beginning, the middle, and the end.

Indigenous Law concerns bodies of knowledge built upon ancestral and technological thought (Berkes 1993; Ens et al. 2012; Fletcher et al. 2021a, b). These bodies of knowledge are holistic, perspectival and grounded in information that is observed with a method that is predominantly kincentric and built around moral empiricism (Berkes 1993; Berkes et al. 2000; Dei et al. 2000; Dods 2004; Salmón 2000; Wilson 2008). That is, the cosmos has an integrity and empiricism that is ancestrally given, and it is the task of the people that are kin to these ancestors to integrate their recognition and understanding of this reality into their minds and actions. (see Berkes et al. 1992: 22; Kwaymullina 2005).

It is not our intention to lock down a definition of Law, nor to simplify understandings of it. Rather, we aim to provide some parameters for appreciating the vastness and potency of Indigenous Laws, and how Law may manifest in the lifeworld of a given Indigenous group at a given moment in time. Any effort to singularly define Law would therefore be, as Battiste and Youngblood Henderson (2000: 35) write, “loaded with Eurocentric arrogance”. There is no blanketing concept or application of Law, rather “[i]t is a diverse knowledge that is spread throughout different peoples in many layers” (Battiste and Youngblood Henderson 2000: 35).

In order for insight into Indigenous Laws as comprehensive bodies of knowledge to flourish, “scholars need to see Indigenous knowledge as a new sui generis (self-generating) path, as a new opportunity to develop greater awareness and to discover deeper truths about ecologies and their forces” (Battiste and Youngblood Henderson 2000: 39). Battiste and Youngblood Henderson (2000: 41) do however also dedicate time to reflecting on what unifies Indigenous Laws and knowledges; regarding that “[g]iven the existing ecological diversity, a corresponding diversity of Indigenous languages, knowledge, and heritages exists”. It has been earlier stated also by Cajete (1986, 2000) that alongside the distinctiveness of Indigenous knowledges that inform Law are some overarching and shared principles. Interdependence and kinship are highlighted in many Indigenous philosophies and considered to be the determining qualities in how the world is understood, engaged with and valued.

Some of the key principles that emerge out of a wider reading of documented information on Indigenous knowledges and Laws include knowledge of and belief in unseen and ancestral powers; knowledge that all things are dependent on one another; knowledge that personal relationships reinforce the bond between people, place, ancestors and all other elements; and knowledge that order and disorder are relationally constituted and expressed between human and non-human presences through actions and communicative pathways (Battiste and Youngblood Henderson 2000: 42–43). Kincentricity also prevails as a common theme throughout many accounts of Indigenous Law. This pertains to the manner in which people view themselves as part of an extended ecological and relational network that shares ancestry and origins. It is an awareness that life in any environment is viable only when humans view the life surrounding them as kin (Salmón 2000). The distance between the human and the non-human or place is reduced through relational strategies which ensure “intimacy among relatives of infinite diversity” (Bird-David 2017: 223–228). In each localised context, these relational strategies negotiate intimacy and distance between human and non-human kin, and underlie the Law which formalises, enacts and monitors these relations, from one generation to the next.

As Battiste and Youngblood Henderson (2000: 9) remark in the opening pages of their work Protecting Indigenous Knowledge and Heritage, “from the beginning, the forces of the ecologies in which we live have taught Indigenous peoples a proper kinship order and have taught us how to have nourishing relationships with our ecosystems … These ecologies do not surround Indigenous peoples; we are an integral part of them and we inherently belong to them” (Battiste and Youngblood Henderson 2000: 9). Likewise, in describing a ‘Native Science’ approach, which aligns with the use of Law in this instance, Tewa intellectual, Cajete (2000: 41) refers to an intellectual commitment that requires “mutual reciprocity, [and] which presupposes a responsibility to care for, sustain, and respect the rights of other living things, plants, animals, and the place in which one lives”. The universe thus becomes a “living breathing entity”, “considered to be ‘alive’, animate and imbued with ‘spirit’ or energy” (Cajete 2000: 41, 75). Another distinguishing feature of Indigenous Laws is their multi-scalar nature. Laws operate at the most immediate level of individual identity construction and placement into a realm of kinship and relationality, and can be scaled up to give meaning and governing structure to how the entire physical geography and land/seascapes of an Indigenous group were formed, and how they are sustained in the present. There is a spectacular range of praxis in the realm of Indigenous Laws.

Indigenous knowledges, as the underpinning structure for how Law is articulated and practised, are distinguished by their nature as diachronic, qualitative, ancestrally bound and holistic (Dods 2004; Gadgil et al. 1993). These ways of knowing thus require the building up of understanding over time that is a long running intimacy which leads to diachronic information, crucial for the comprehension of short and long rhythms of life. A widely accepted definition of Indigenous knowledge is provided by Berkes (2008: 7): who describes it as an emerging “cumulative body of knowledge, practice and belief”, which evolves “by adaptive processes and [is] handed down through the generations by cultural transmission about the relationship of living beings (including humans) with one another and with their environment”.

A qualitative approach to the cosmos of this kind is attentive to the patterns and relations which form or are inherent between elements of life, or elements which make up Country. These patterns and relations are read through multiple lines of communication, including language, relationships, birth and death, narrative, ceremony, seasonal and hunting patterns and other types of performative and communicative exchange. In the context of Indigenous Australian knowledges pertaining to Country, orality is the distinguishing feature of how knowledge takes shape and is transmitted across generations. Oral traditions can have extraordinary longevity (see Nunn and Reid 2016, who date Aboriginal narratives to within 7250–13,070 cal years BP) and are marked by striking virtuosity (Evans 2013: 293). They operate effectively to transmit all range of cultural information across incredible lengths of time, often emplacing knowledge in specific locales and regions. For example, Indigenous Australian oralities have held and transmitted ancestral behaviours and characters, land and sea formation events, sudden onset events such as volcanic eruptions and sea level rise, unusual or fraught cultural encounters with outsiders and instructional pathways for cultural practices and moral empiricism.

Law as Realpolitik

The vast majority of treatments of Indigenous Law frame the Indigenous experience through an emphasis on criminal justice, international law and human rights. Alternatively, dominant themes in popular discourse tend to restrict Indigenous Law to a philosophical category, as bound to principles and ideas, which give it a soft glow of aspirational harmony. Whilst the first is a crucially important thread of inquiry, it tends to step away from the specificity of Indigenous Law as autochthonous, and existing prior to and in resistance of settler colonialism. In the second case, they potentially limit attention to the practicability of Indigenous Laws and their expression through day-to-day actions and decision-making which has physical expression and political choreography at its basis.

Indigenous Law is formative, generative and responsive, thus its outward expression and display deserves considered attention. It is also a realpolitik and lived practice, enacted and embodied by Indigenous peoples in communal and personal contexts. Such a focus on the livedness of Law or the mobilising of Law for contemporary social and political needs is echoed by Pawu-Kurlpurlurnu et al. (2008) who write of Ngurra-kurlu, a ‘new design’ or methodology for living and building relationships with and among Warlpiri Indigenous peoples in Central Australia. This new design builds upon Warlpiri Law and draws upon the five key elements of Warlpiri culture: including land (Country), Law, language, ceremony and skin (kinship). Adherence to Ngurra-kurlu becomes then a template for the whole of Warlpiri culture, an efficient pedagogy (way of teaching), a process for building identity and self-esteem, a way of looking after the health of people and the health of Country as well as a framework to create successful projects that are relevant to Warlpiri people. Rose (2000, 2008) and Povinelli (1995, 2016) also highlight the deeper social implications of Law and how it might be seen as working on a day-to-day basis and in the service of supporting healthy communities, as both positive intergenerational encounters, along with esteem building and generating self-worth and leadership pathways for younger generations. Elsewhere Law has been engaged to develop community-based programs aimed at addressing bullying, esteem building, motivation and employment and intercultural outreach opportunities (e.g., Bradley and Yanyuwa Families 2007).

Graham and Brigg (2020), across a series of opinion pieces, write of Aboriginal Australian efforts to systematically describe and assert forms of socio-political ordering and governance. They have identified a number of “central Aboriginal political concepts”, including, for example, autonomy (as a relational-social encounter), proportionality (through the scale of relations to others, and the weight of actions in relation to others), autonomous regard (as the way of balancing human being with other presences and keeping relationships flowing when relations are good and when they are tense and difficult) and a relationist ethos (abiding attentiveness to obligations and responsibilities that arise within relationships). These concepts, along with others they identify such as wisdom, ethics and Country, combine to form an Aboriginal political philosophy (Graham and Brigg 2020) and heavily inform a realpolitik. Regard for such concepts and philosophies (or Law) determines dispositions or manners of human behaviour and conduct within the context of a particularly constituted cosmos. Their emphasis on conduct and relational action reinforces the view that, in Indigenous Laws, “not just any kind of relationship will do” (Sutton 2009: 192). The relational imperatives of Law are such that they are best sustained by and through adequate performance (Sansom 1988: 171). Law is the current which runs through the habit of personhood, meaning that one is “constituted through being continually engaged in resolving the tension between autonomy (or, in Aboriginal English, ‘being boss for oneself’) and wanting, indeed needing, to be with others” (as constituents of a relational world) (Musharbash 2018: 45). As Chaps. 2 and 3 reveal, Yanyuwa Law directly determines personhood, and sets the parameters for a person’s entire relational world. These bonds are then expressed through the performance of relationships.

One of the overarching aims of this book is to dismantle weak assumptions and exoticisations that can surround depictions of Indigenous Laws, and to instate the power and influence of Indigenous Laws, by engaging such aspects as their practical nature, temporal and generational nuance, and contemporary expression. Our approach to Law involves articulating a view of Indigenous Law as kincentric and a relational politics of a high order—the artful combination of realpolitik, intellectualism and ethics, all of which are prone to expansive and responsive forms, meaning that the praxis of Law is a highly negotiated effort.

The best way for us to achieve our aim is to focus specifically on Law in place. This is done through steadied attention on narnu-Yuwa, Yanyuwa Law, set against the backdrop of a dynamic and profoundly shifting cultural land and seascape that is Yanyuwa Country in the southwest Gulf of Carpentaria, northern Australia. A focus on the nature, status and standing of Indigenous Law in this one community reinstates the emplaced quality of Law and emphasises the grassroots community efforts which have sought to safeguard Law and repurpose Law for community needs in the present. A return to the local highlights how Yanyuwa Law has been and remains a valuable governing structure for people’s everyday lives, individual and communal freedoms and esteem building. But before we continue on to engage with Yanyuwa Law, we wish to introduce the reader to the team of authors, led by Yanyuwa elders.

About the Authors

This book is the product of lifetimes of learning, in particular for the four Yanyuwa elders who have taken a central role in the development and production of this work. It is their experiences with Law that facilitate the detailed accounts as presented in the book’s ethnographic chapters and which contextualise our account of the expansive nature of Indigenous Laws. Annie a-Karrakayny, Graham Friday Dimanyurru, Dinah Norman a-Marrngawi and Mavis Timothy a-Muluwamara are eminent Yanyuwa community leaders, teachers and scholars. They have initiated and contributed to vast amounts of recording of their culture and Law, and co-designed research projects over time with co-authors and collaborators John Bradley, Amanda Kearney and Vincent Dodd. They have published several books, journal articles and book chapters dedicated to showcasing their maritime culture and the Law of their Ancestors.

The contributions of Annie and Graham come to the page here, sadly, posthumously. Their passing has been a monumental loss to the Yanyuwa community and to the team of authors, who have worked closely with both of these esteemed community leaders and their families over several decades. Annie and Graham are regarded as having been intellectuals of the highest standing. They navigated and sustained continuity in their Law over lifetimes in which change occurred at a shocking and unprecedented rate. This began with the colonisation of their homelands, and continued through shifts towards the advent of pastoralism and in recent decades the arrival of a mining industry. They both travelled to other parts of northern Australia for work, liaised with Indigenous people from across the Country, committed themselves to decades of land rights efforts and led programs to safeguard their language, Law, sea Country and culture for future generations. Their dedication to teaching Law to their young and mid-generation family members and also to non-Indigenous visitors on their Country was a lifelong project, and their contributions are written into every page of this book. Their hard work and leadership in Law underwrite many community-based efforts that continue to revive and safeguard Law. We mourn their passing and acknowledge their intellect as crucial to the inception, writing and publication of this book.

Annie a-Karrakayny, a Yanyuwa woman of the Wuyaliya clan, was born in 1930.Footnote 4 She was of a generation that were the last people born on their Country. She spent her childhood and early adulthood travelling the saltwater Country of Yanyuwa people; she traversed open seas and moved through the island and mainland parts of the southwest Gulf of Carpentaria in the company of old people who taught her songlines, ancestral narratives and the nuance of her Law. As an adult she spent many years working on pastoral properties far from the township of Borroloola, which had become a central colonial outpost and rations depot in 1901. When she would return to Borroloola during the layoff season of the pastoral industry, she would return to Country and participate fully in matters of Law and ceremony. Annie was a philosopher and spent much of her senior adult life trying to work out how western law and her own Law might speak to one another. She assisted lawyers, judges, anthropologists, missionary linguists, school teachers, doctors and nurses who came to her Country, in need of guidance on how to navigate local Law and culture.

Annie travelled to conferences across Australia and New Zealand speaking and listening to matters concerning the place of her Law in Australia and as set amidst a global community of Indigenous people likewise seeking to safeguard their Law in a world increasingly pressed upon by dominant white forces. Annie worked tirelessly with John Bradley and Amanda Kearney in documenting her knowledge and ways of knowing her Law. She passed away in 2007, but provided crucial insight into the Law that is presented in this book.

Graham Friday Dimanyurru passed away in mid-2021 as this book was already in development. The overarching drive for this book came from Graham himself and hours, if not days, of conversation that took place invariably on the veranda of his home in the Yanyuwa camp in Borroloola or whilst moving across sea Country. Graham was a Wuyaliya clansperson. At age 61 he was one of the most senior Yanyuwa men alive, and he held the mantle as the community’s most respected cultural broker in interactions with non-Indigenous politicians and officials. He had a remarkable ability to practise the art of realpolitik, across the fields of Yanyuwa Law and whitefella law. This was solidified by his participation in men’s Law in his early years. His childhood and young adulthood were spent with his father and other senior men and women, so his knowledge of Country and Law was very strong. He had been the director of the Rrumburriya Aboriginal Progress Association, and head ranger of the li-Anthawirriyarra Sea Ranger Unit, a position which tasked him with implementing natural and cultural resource management strategies to care for the expanse of his sea Country, in conjunction with a team of young and mid-generation Yanyuwa men and women who he inspired and mentored.

Graham embraced his role as community leader for the ‘Elders visiting prison program’ and as a member of the li-Wirdiwalangu Yanyuwa Elders Group. Graham was highly literate in western land management and had vast experience in public speaking and representation of community needs and aspirations. He lived his Law fully and was one of the most impressive persons one could ever meet. We have continued to work closely with his wife Gloria Friday (who sadly passed away in 2022) and his daughter Adrianne who very much wishes to see his contributions recognised as an author on this book.

With the passing of Annie and Graham, there is a great need to tell this story and to recognise their intellectual leadership and authorship posthumously. David Isaac Birribirrikama, Annie’s son, described the important role his mother played in this community and her standing as a Law woman,

My mum was a Law woman, a business woman, she knew the Law inside out and no one could take that away from her. My grandfather, her father taught her all the way through, even kujika (ceremonial songlines) she knew what was going on, she knew her mother’s Country right out and fought for the Law of that Country all the way, right up until she died. I think about this a lot, I went through Law when my mum and her sister Dinah (Norman) were the leaders for Law in this place.

Speaking of her beloved husband Graham, Gloria Friday distinguished his high standing and position within the community and as a leader of practicing and teaching Law,

No one can run my husband down, he is a Law man and people know that, he is holding the Law for his own Country and for his mother. His father and his mother’s brother taught him right through, all the details, he knows how to hold the Law, he’s a full business man.

Guiding and intellectually leading the team of authors is Dinah Norman a-Marrngawi, sister for Annie a-Karrakayny. Dinah was born in 1935 in the hull of a dugout canoe, and is the last surviving Yanyuwa person to have experienced a formative and young adult life surrounded by ceremony and exclusive use of the Yanyuwa language. She was educated by a group of elders for whom Law was the sole governing aspect of social life. Her worldview is entirely shaped by Yanyuwa ways of knowing. She is a Wuyaliya clansperson, and the most senior Yanyuwa alive today. She is a fluent speaker of the Yanyuwa language, and the primary holder of songs associated with ritual practices and ceremonies, even some that were once held by men. She has given over 40 years of her life to working on ways to record Yanyuwa Law and culture. She has led the land claim and restitution process for this community, taught generations of young people at the Borroloola school in her local community, advised the li-Anthawirriyarra Sea Rangers and guided John Bradley and Amanda Kearney throughout the entirety of their careers. Her intellectual contributions have resulted in numerous books, films, digital animations, songs and rich ethnographic recordings.

Standing in a cousin relationship (marruwarra) to Dinah, author Mavis Timothy a-Muluwamara holds a central role in the development and direction of this project. Mavis is a Rrumburriya clansperson. She was born in 1947. Both her parents were very important Law holders and maintained ceremonial life within this community through until the early 1990s. Mavis is one of the longest serving health workers in the Northern Territory of Australia. She has a strong command of her Yanyuwa language and English and has overseen the translations from Yanyuwa to English that accompany the accounts of Yanyuwa Law presented in this book. Mavis is a superb translator and throughout the process of recording Yanyuwa Law, primarily with John Bradley, has made plain some of the challenges that come with translating Law into English. As such we commit to presenting all testimonies of Law in both the Yanyuwa language and in their translated form. Mavis plays a key role in supporting young men and women in her community, and her healthcare training is a unique skillset from which she identifies and ensures alignments between the importance of Law for health in a physical and emotional sense.

John Bradley has collaborated with Yanyuwa families since 1980 and introduced Amanda Kearney to the community in 1999. They both later introduced Vincent Dodd to Yanyuwa families in 2021. John has spent the last 42 years bouncing around in boats on the rivers and sea Country of his Yanyuwa mentors and teachers. He has acted as senior anthropologist on two historical land claims over Yanyuwa Country, worked on issues associated with language and cultural management with Yanyuwa elders and the li-Anthawiriyarra Sea Ranger Unit. He is also a fluent speaker of the Yanyuwa language, and his research is directed towards issues associated with Indigenous ontologies, epistemologies and axiologies and ways that ‘epistemological bridges’ might be created with western ways of knowing.

Since 1999 Amanda has sought to learn and share another kind of Yanyuwa story, one that focuses on the experiences of cultural wounding that have pressed upon Yanyuwa people and their culture over time. Not content however to stay with narratives of harm and powerlessness, at Yanyuwa instruction, Amanda has also focused on the community’s efforts to heal, thrive and safeguard their culture, Country and Law for younger generations and into the future. Together John and Amanda have undertaken a vast amount of research built around community-identified themes, ranging from land and sea rights, intergenerational knowledge exchange, language and song recording, revivals of Law through contemporary recording efforts and supporting programs of caring for Country. Vincent has recently embarked upon collaborations with Yanyuwa families regarding the community’s perception of, and priorities for, a rich archive of Yanyuwa cultural materials. The archive, created predominantly through collaborations between Bradley and Yanyuwa families, tells many stories of how Yanyuwa life and Law has changed over the past 150 years and consists of hundreds of material culture items, photographs, recordings and records relating to Yanyuwa Country and Law. Vincent is working with Yanyuwa men and women on what the future of this collection might be in helping to maintain and revitalise Yanyuwa Law and knowledge into the future.

Our collaborations have continued through to the present moment, and in 2020 and 2021, Amanda and John participated in a Yanyuwa-led project on the effects of the coronavirus on life in the remote township of Borroloola (Yanyuwa Aboriginal Families et al. 2020, 2021). The deceleration in daily life brought about by bio-security restrictions and the inability to travel created opportunities for almost daily phone calls between the groups of authors. Whilst seemingly ordinary these phone calls offered “a singular moment of possibility” (Mattingly 2018: 175), where Yanyuwa reflections on the pandemic and the isolation it induced have led to deep reflections on loss of life in pandemics past, memories of old people, stories of Law and health struggles in this remote part of Australia.

The pandemic also had the effect of returning many people home to the township of Borroloola, including those who were living away for work, and those young people attending boarding school. The galvanising effect of everyone being home increased the volume of persons in multi-generational households and drew attention to the differences between elders, mid- and younger generations and their knowledges. Yanyuwa community leaders have spoken with a degree of urgency as to the specific needs within this community, concerning relationships between old and young, and what they identify as pressure to sustain the cultural expressions referred to as Law. Yanyuwa families in the present are asking, what is the place of Law today? How can Law be taught to young people? And how can the memories of old people be used to keep our community strong?

These questions operate as the beacons which guide this book, alongside and in relation to broader Indigenous Law contexts. There are significant parallels in ethos and objectives across other Indigenous lead programs worldwide, including, for example, the Revitalizing Indigenous Law and Changing the Lawscape of Canada Program, involving the Indigenous Law Unit of the University of Victoria, the Indigenous Bar Association, and the Truth and Reconciliation Commission of Canada (see Indigenous Law Research Unit/Law Foundation of Ontario 2013). This program is driving an Indigenous Law project aligned with the agenda to better recognise how Indigenous societies use their own legal traditions to successfully deal with harms and conflicts between and within groups and identify legal principles that communities could access and apply today in order to build healthy and strong futures. So too, the establishment of biocultural protocols safeguarding Indigenous Laws and knowledges, charters of Indigenous rights, Indigenous youth programs aimed at adaption of Law for young leaders all speak to the prevailing importance of Indigenous Laws globally. Indigenous self-determined efforts to safeguard and reinvigorate the place of Law in everyday and sacred contexts are vast in number and reveal the hyper-relational nature of Law as it shapes and influences aspects of life such as health, education, land and sea management to offset ecological crises, criminal justice and ethical relations, esteem building and future security.Footnote 5 The appeal and benefit of Law in communal contexts draws attention to its applicability in many contemporary scenes in which Indigenous communities are seeking rights and pathways to well-being, multi-generational and communal strength as well as the effectiveness of culturally based problem solving that is generative, in place and does not cost a lot to mobilise (Pawu-Kurlpurlurnu et al. 2008: 2).

Chapter Organisation

This book addresses two needs in the current literature on Indigenous Law and knowledge. The first is to present Indigenous Laws as governing structures for people’s everyday lives. The second is to argue that Indigenous Laws can inform more expansive modelling of politics, the relational, governance and leadership structures, by exploring, through a close encounter with Aboriginal Laws in the context of remote Australia, how Law can enrich political life and provide invaluable knowledge for programs that have a direct impact on Aboriginal people’s lives. We approach this from a position of deep respect for how Indigenous Law is negotiated, how it changes and can be responsive to need and circumstance, over time.

In an effort to reveal and more accurately present Indigenous Laws as systems of governance, and as powerful stabilising forces which maintain communal order in relation to lands and waters, we will turn to the scale of the local. In Chap. 2 we establish the specific local context for our discussion. This approach is designed to assist the reader who may, up to this point, know little about Indigenous Law. Indigenous Law is explored through knowledge and practice that structures rights to and control over lands and waters, ecological understandings and processes, relationships between human and non-human kin, political structures and decision-making. Law is not liminal, and is wholly attached to Indigenous peoples’ lands and waters. Too often popular notions of Indigenous Law reduce it to ‘folklore’, mysticism, fables and legends. Through an ethnographically rich account of Law, land/sea rights and succession in one remote Aboriginal communal context, this book invites the reader into an encounter with Indigenous Law.

In Chap. 3 we present a detailed oral testimony of Yanyuwa Law. Through this, readers can start to appreciate Indigenous Law in practice. Yanyuwa identify as li-Anthawirriyarra—people whose essence and Law come from the sea. They artfully navigate a body of Law that connects people through paternal and maternal descent to lands and waters, non-human species, elements and other worldly phenomena. The account which is presented in Chap. 3 is based on ethnography which spans 40+ years of collaborations between the authors of this book. It concerns how mainland and island Yanyuwa are connected to one another and how the entirety of this physical land and seascape is held through paternal and maternal descent. The account details an event in which matters of succession were decided upon, and then maps how these decisions have carried over through time into the present. In doing so it examines the stabilising quality of Yanyuwa Law, and reflects on some of the challenges that have compromised the practice of Law in this Indigenous community.

Our engagement with Yanyuwa Law bridges a timeline from the Dreaming—as the origin point for Law, through to political shifts in the 2000s and the present. At points along the way we engage with key events that have helped to shape and instate Law around governing patterns of land/sea ownership and rules of succession. In the early 1900s a crucial event, the birth of a child, begins a new pattern of land/sea ownership. This child, born to a mainland father and island mother, was spiritually conceived on island Country. He thus became a crucial link between mainland and island Yanyuwa families, and his birth signalled a profound relational bond between clan groups and families henceforth in this community.

Between the 1920s and 1950s this pattern of ownership and right of succession was solidified through ceremony, weighty discussion and collective agreeance among community leaders. In the 1980s this Law was remobilised as the community entered an era of fighting for legislative land rights, and people began to acutely feel the pressure to assert and prove rightful ownership and kincentric order in their community under the powerful gaze of the colonial eye. This has continued into the early 2000s and the present as Yanyuwa dig deep into the western legal machinery that is legislative land rights in Australia. This process has at times been affirming, but also damaging for Yanyuwa Law as western legal processes and evidentiary burdens have scrutinised and misunderstood the Law as it was in the Dreaming and as it has changed since the arrival of white people in Yanyuwa Country. By chronicling this sequence of events as they pertain to Yanyuwa Law, we illustrate the highly political nature of Indigenous Law. This reveals not only the stabilising effects of Law but also how it can be threatened by external and internal pressures, causing community unrest and uncertainty.

Yanyuwa are deeply committed to the specific needs within their community, and at present these needs relate to the passing of knowledge between older and younger generations, a key element of which is the need to maintain successive ownership of Yanyuwa land and sea Country. Many elders have identified a ‘crisis in the Law’, which speaks to their fear of a loss of knowledge among younger generations of the realpolitik of Yanyuwa Law as transmitted through ceremonial participation and ritual enactment. Yanyuwa leaders have led the call for this book, and describe the challenge they face as follows,

You know only a few of us left that saw what old people had, only a few of us know how to sing and dance, even the public [ceremony] stuff, we gotta teach these young fellas…and woman too, they gotta know the Law and how it works public side, that’s the only side we can deal with now, kurdukurdu (secret and sacred) side that finished now, that’s just for memory, but public side I reckon we can do it if we work together. David Isaac Birribirrikama (son of Annie a-Karrakayny), 2019

Whilst these concerns are specifically articulated by members of the Yanyuwa community, in many respects they are challenges that Indigenous groups face globally, as they negotiate dominant political systems and the enduring forces of coloniality which have swamped self-determined political, economic and cultural processes. Our local engagement with Law is designed to utilise the specific to speak to the big picture. By localising the discussion, the reader becomes acutely aware of the sophistication at play within Indigenous political life and Law in a manner that is more accessible and illuminating. This illustration then allows the book to explore Indigenous Law through examples of kincentricity as a relational modality, and orality as the mode and means to enact and practise political life.

In Chap. 4 we return to a global focus, launching a reflective discussion of Indigenous Law as more than soft power; more than a ‘national asset’ to be exploited for tourism, creative arts and entertainment. The aim is to make a case for the rigorous nature of Indigenous Laws in supporting healthy communities in the contexts where these Law are emplaced. By extension we argue that there are overarching applications of Indigenous Laws for sustaining healthy communities more broadly. Indigenous Law as a realpolitik will be engaged for the insights it provides on collective decision-making practices, moral and ethical interactions with concepts of land/sea ownership, and kincentricity as a relational expression of high political order.

In closing the book, we offer up a short conclusion and revisit our original aim, that is, to redress a stubborn tendency to constrain Indigenous Laws under the banner of esotericism, which traps them on the margin of contemporary political life and democratic process and undermines their power to influence.