Ethnic identity and the law

By Legal Eagle

A long time ago, I was having a debate with some Jewish friends as to when a person could be entitled to call themselves a Jew. One friend claimed that the important factor was self-identification as a Jew. The other claimed that the important factor was recognition of one’s status as a Jew by other Jews. “Actually,” I opined, “I think it’s a bit of both.” I explained that I had a friend who was “technically” Jewish, but who did not identify as a Jew. Even though other Jews might consider him Jewish because of his mother’s background, he did not self-identify as Jewish, and he had been raised in a different tradition. By the same token, there had to be some acceptance of one’s Jewish status by other Jews to be regarded as Jewish. Of course, there’s degrees of acceptance. If one converted to Judaism under the rules of Reform Judaism, one would not be regarded as halachically Jewish according to Orthodox Jews. So you would be accepted as Jewish by some, but not by others. If one converted to Judaism according to the requirements of the Orthodox Beth Din, by contrast, one would be more likely to be accepted as Jewish by a wider range of people.

Later, when I studied indigenous law and culture and tutored a range of indigenous students from different backgrounds, I realised that there were similar issues of identification as in the Jewish community. Similarly, I think identification as an indigenous person requires a measure of self-identification and identification by the wider indigenous community.

However, identification as indigenous cannot simply depend upon skin colour. My indigenous students were mixed race (primarily Irish-Aboriginal mixtures). If one’s parents are Irish-Aboriginal mixes, one could end up on the Irish-looking end of the spectrum (like one of my students – a blue-eyed blond), on the Aboriginal-looking end of the spectrum (like another student) or in the middle of the spectrum (like a third student – much more tanned skin than I, but with lots of freckles – she looked Turkish, Northern Indian or Afghan, perhaps). The student who looked traditionally indigenous said to me, “I’d love to go to Ireland and see where my forebears came from, but I’m afraid people might laugh at me if I say that I’m half-Irish.” I pointed out to him that he was actually more Irish than I am, despite my freckles, pale skin and red-brown-blonde hair. I told him sternly that he had every right to say he was Irish. He could equally well have turned out looking like me, and he would have an equal right to say he was Aboriginal in that case.

Anyway, given my interest in ethnic identification, I was interested to read that some indigenous people are suing Herald Sun columnist Andrew Bolt over some articles he wrote about indigenous identification and skin colour. In one piece, White fellas in the black, Bolt says:

…Mellor and McMillan are representatives of a booming new class of victim you’d never have imagined we’d have to support with special prizes and jobs.

They are “white Aborigines” – people who, out of their multi-stranded but largely European genealogy, decide to identify with the thinnest of all those strands, and the one that’s contributed least to their looks. Yes, the Aboriginal one now so fashionable among artists and academics.

Let McMillan himself describe the torture he’s faced as a result – the shocking pain of having not been discriminated against for being black.

“I am a blonde-haired, blue-eyed, fair-skinned Aboriginal Australian . . .

“As a child, I grew up expecting everyone to be like me, to look like me – with the blonde hair and blue eyes.

“Clearly, my naive ideas about how Aboriginal people were ‘supposed’ to look were wrong. But being Aboriginal and fair and blonde was normal to me and I grew up in a world where I was treated ‘normally’ . . .

“Impeding my growth from that young person into the adult I wanted to become was the profound issue of identity. I was a white black man . . . I was becoming a victim.”

He has written other columns, It’s so hip to be black and White is the new black which are in a similar vein.

The Age reports that up to nine plaintiffs are suing Bolt in the Federal Court:

Up to nine fair-skinned people will testify that they were hurt, humiliated and offended by newspaper columns that questioned their right to claim they were Aboriginal, the Federal Court was told yesterday.

Ms Knowles [counsel for the plaintiffs] agreed there was an objective test for Aboriginal identity that looked at genealogy and whether the person was accepted ”communally”. But she said it was also a deeply personal choice that had ”subjective elements”.

She said, ”Mr Bolt says the named persons have falsely claimed their Aboriginality, and whether or not that is false is a relevant issue in terms of whether or not there’s a breach [of the law]. It’s also relevant to whether or not there’s likely to be insult or humiliation.”

The applicants claim the publications breached the Racial Discrimination Act. They want an apology, legal costs, and a gag on republishing the articles and blogs or anything else with substantially similar content, as well as ”other relief as the court deems fit”. They are not seeking damages.

Neil Young, QC, for Bolt and The Herald and Weekly Times, said the applicants should explain ”with some precision” what factual errors were alleged.

Just because someone has white skin does not necessarily mean that they are not indigenous. It is perfectly possible for a “mixed-race” couple to have a white child and a black child. See, for example, these adorable twin sisters from the UK whose parents are mixed race: one is a blue-eyed blonde with pale skin, the other is curly-haired girl with black hair and brown skin.

I would be interested to know, however, how other indigenous people regard the people mentioned in Bolt’s article. Self-identification is only part of the picture: are the people mentioned in Bolt’s article accepted by other indigenous people as indigenous? If so, is that sufficient?

The case raises interesting questions of identity and choice. I shall be fascinated to see how it unfolds.

[UPDATE by SL: Somewhat tangential to this, but still relevant, Lorenzo reviews an excellent study of the origins and history of racism].

Update: Former ATSIC chairman Geoff Clark is one of the plaintiffs suing Bolta.

2 Trackbacks

  1. […] problematic. I agree. As I have outlined previously, I did not agree with Bolt’s articles and I think that the issue of Aboriginal identity is a very complex one, and attempts to simply reduce a discussion about […]

  2. […] have discussed why I think Bolt’s focus on skin colour and looks was not appropriate here. It is perfectly possible for a person to ‘look European’ but to have Aboriginal […]

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