Adverse Possessions: Legal Representation and the Settler-Colonial Image

What do images have to do with the law? A lot, as it turns out. To make sense of an image requires the viewer to imagine a form of life. To imagine a form of life is to imagine a form of law. So law owes its existence to images; they clothe its abstract existence in sensible form. Think of the picture of sovereignty in the famous frontispiece of Thomas Hobbes’s Leviathan, the hallowed federalism of the Stars and Stripes, or Justitia, the anthropomorphic figure promising blind and equitable justice. Law has its own coercive force, to be sure, but its legitimacy depends on symbols we commonly assume are external to it, symbols that legal theorist Robert Cover argues “create an entire nomos—an integrated world of obligation and reality from which the rest of the world is perceived.”[1] For Desmond Manderson, an interdisciplinary scholar whose work regularly engages questions at the intersection of law and the humanities, the relation of visual representation is essential to legal perception. He argues that we need to pay closer attention to the specific ways that the law and the visual are enmeshed: the visual is not merely evidence of some or other legal fact in the world but actually “partakes in the same reality” as law itself.[2] To critique or undermine the force of the image has the potential to disrupt the normative force of the legal paradigm it instantiates.

As both Cover and Manderson suggest, a sense of the imbrication of legal and aesthetic forms allows us to recognize the juridical significance of images that seem to have very little to say about the law. In turn, this approach to law and image allows me to respond to Stephen Ross’s recent call for modernist critics to “unsettle” themselves and the field through a closer engagement with the legacies of settler colonialism. In this blog post, I analyze how law appears unseen in Australian settler-colonial visual art—attending not so much to the racist logic in the manifest content of the images, but rather to how form partakes in the legal reality of white supremacist nation-building across the twentieth century.

No-man’s Aesthetics

By the time of Australia’s Federation in 1901, impressionist painting had emerged as an aesthetic form adequate for the colonial project. Yet although settler artists were influenced by European modernist trends, they consciously diverged in their process. As Allaine Cerwonka has shown, in the early twentieth century Australian artists and critics began to distance themselves from late nineteenth-century colonial art, believing that the earlier landscapes looked too much like European impressionism.[3] To capture the spirit of the land, one could hardly use impressions from elsewhere, and so a new, distinctly Australian form of painting was needed—one tailored to the exigencies of the colonial project, an impressionism that impressed the idea of ownership over the land on the minds of white Australians or would-be colonists. By 1926, this aesthetic conquest had culminated in what the influential magazine Art in Australia dubbed the “new vision of Australian landscape.” In a similar way, Australian law was realizing its own vision. Politicians and legal philosophers were regularly devising new legal and administrative forms to better facilitate the enclosure, capture, and saleability of Indigenous lands, such as the Torrens System of title-by-registration, Australia’s “gift to the common law world.”[4] Both the new laws and the new painting styles underwrote the same project—what Aileen Moreton-Robinson terms the "white possessiveness" of settler colonialism.

Arthur Streeton’s Australia Felix (1907; fig. 1) is exemplary of this settler-colonial artistic project. Painted one summer in Australia’s southeast, it captures the Macedon Ranges, north-west of Melbourne, in a vivid, impressionistic style. The heat from the thirsty plain throws a haze over the valley, which the painter surveys from the ridge of a hill. Bisecting the canvas, the ridge in the foreground is given in sharper focus than the rest of the picture, emphasizing the vast expanse below and its even vaster potential for development or exploitation.

Australia Felix (from the Latin, “fortunate” or “happy” Australia) takes its title from a series of travel accounts written by Thomas Livingstone Mitchell following several expeditions in Southeastern Australia. Mitchell was the Surveyor-General of New South Wales from 1828 until his death in 1855, and his topographical surveys and writings helped to accelerate the settler rush on Aboriginal lands (fig. 2). Streeton’s work hooks itself to this historical reference point, meditating on a key moment of entrenchment and expansion in the Australian colonial project. It transposes Mitchell’s narrative of “discovery” into a visual impression of covetousness and possession of the land.

Australia Felix is perhaps the greatest aesthetic example from Australia’s Federation period of the legal fiction of terra nullius. From the Latin meaning “no-man’s land” or “land belonging to no one,” terra nullius is the most notorious concept in Australian legal history. In short, based on the authority of a mid-eighteenth-century British decision, the colonial Courts of Australia held that the British Crown Laws would presumptively apply to a colony if it were deemed legally uninhabited. This legal–rhetorical sleight of hand, which allowed settler-colonialists to exclude Indigenous peoples symbolically and physically from their traditional lands as non-citizens or trespassers, subsisted as good law in Australia until 1992.

If terra nullius is, in the words of Thomas Ford and Justin Clemens, a “discursive act of colonial making” that reflects and is reflected in legal judgments, travel accounts, and other colonial narratives, Streeton’s Australia Felix is its visual counterpart, supporting the claim and capture of a new Arcadia in the collective consciousness of white Australia.[5] Writing in 1931, the Australian art critic Lionel Lindsay declared, “it is the great painter who fixes for all time the image of a country. This is perhaps my patriotism—for Australia is a land without tradition—which I find abroad summed up in the faces of friends, a thought of sunlight, and visually by the landscapes of Arthur Streeton” (emphasis mine).[6] Lindsay had never seen the lands Streeton painted, but their representations clearly held his imagination captive. Impressionism, according to Lindsay, “recreated the aspect of the world,” such that Australia Felix registers the shift from exploration and discovery to impression and (dis)possession: the realization of the colonial potential of terra nullius (“Arthur Streeton,” 9).

The Animus Possidendi

George W. Lambert’s The Squatter’s Daughter (1923–1924; fig. 3) presents another hallmark in the same aesthetic and legal project. Even as terra nullius provided the motivating fiction and precondition for legally sanctioned white possessiveness, the formal development of the settler-colonial image paralleled the progress of the systematic dispossession of the Indigenous people of Australia. Lambert’s impression of (or on) the landscape in The Squatter’s Daughter differs from the wide-open terrain of Australia Felix by its framing and enclosing of a specific parcel of land: Streeton’s vast potential is translated to localized use. Lambert’s landscape, then, is a powerful example of the “new vision” Art in Australia would propound just two years later. No longer slumbering under the haze of the unknown, the terrain Lambert surveys shimmers with life, as if the clouds of terra nullius have lifted from the valley to reveal a leisurely scene where lamb, mare, and woman frolic.

The addition of the figures creates a picture that indexes two stages in the process of seizure: the first, initial move from survey to occupation; and the second, later move from agricultural labor to leisure. For what betokens the common law right of quiet use and enjoyment of a piece of land more than using it for leisure? Thus Lambert inserts each figure into the frame as they really were inserted into the property. Indeed, there’s a sense in which these figures remain in situ today, since the descendants of wealthy pastoralist and landowner Sir Granville Ryrie, whose daughter appears in the picture, still live at the homestead on this plot of land.

Works like The Squatter’s Daughter strengthen the claim for settler title against Indigenous possession existing for millennia. The common law action of adverse possession is illuminating here. It allows a person occupying property under certain conditions and for a prescribed period (at least 12 years in Australia, depending on jurisdiction) to claim formal legal title of that land. The possession is adverse because until the claimant brings the action, the land is legally owned by someone else. A claimant’s intention to possess is essential and must be manifest—the animus possidendi (or “possessive spirit”)—and they must act as if the land was their rightful property, including the exclusion of the legal owner. The historical policy motivation for adverse possession is to encourage the effective management of land and disincentivize freeholders holding property without occupation.

I hope the irony of adverse possession—also known, illuminatingly, as “squatter’s rights”—is clear. Although Indigenous peoples were in many respects excluded from the nomos of colonial law, Lambert’s work pictures a reality formally akin to the legal claim of adverse possession of the white settler against the rightful Indigenous titleholders. It bears proof of occupation, but it is more than that; it is itself a kind of adverse possession, naturalizing not the landscape but the forms of its colonial use—agriculture, livestock, and leisure. Lambert’s lauded verisimilitude implicates itself in a co-constitutive relation with the settler-colonial animus possidendi. Like Streeton’s vision of “fortunate” Australia, The Squatter’s Daughter performs a hostile capture of traditional lands of Indigenous Ngarigo people who—although in some ways present in the picture through land, through a different spirit—are altogether left out of the frame as legal or aesthetic persons. Colonial law’s (in)visible force arrogates authority to itself by ignoring and thereby superseding the inconvenient precedent of Indigenous law. One wonders if it was precisely this logic of conquest and exclusion that British eugenicist and fascist George Pitt-Rivers saw in the image when he acquired it from Lambert in 1926.

A new vision of Australian law

Painted in the late twentieth century, three years before the bicentenary of the British invasion of Australia, Rover Thomas Joolama’s Bedford Downs Massacre (1985; fig. 3) contests aesthetic occupation by acknowledging its violent reality. It depicts Bedford Station in remote northwest Australia, the site of a massacre of Indigenous peoples by settlers in 1926—around the time of Thomas Joolama’s birth and just two years after Lambert painted The Squatter’s Daughter. Whereas the settler-colonial artists implicate viewers in a complex of legal relations, placing us in the position of a white colonial surveyor or landowner with a will to possession and exploitation, Thomas Joolama shifts our view of the land from the horizontal to the vertical through topographical planes and dots, which represent the land and people (white and Indigenous), respectively. Despite its abstraction, it presents the history of violence that runs orthogonal to the picture of colonial progress painted by Streeton or Lambert.

Thomas Joolama provides us with a counter-modernity—an Indigenous modernism, as some art historians have argued.[7] Indigenous modernism is a modernism of contacts: of a present sutured to its past; of the traces of encounter with foreign forces; of dispossession and reclamation; of community and the communication of knowledge and experience. It thus acknowledges and bears witness to settler-colonial modernity, but instead of rehearsing or adapting European trends in the service of conquest, it emerges, as it were, from within its own aesthetic jurisdiction to present an alternative legal picture. Indigenous art is one of many traditional cultural practices inseparable from—and, in some cases, constitutive of—Indigenous relationship to “country.” It bears witness to the rights and duties of traditional ownership under the historical conditions of settler-colonial modernity.[8]

Bedford Downs Massacre depicts events of 1926, the year when Art in Australia defined its new vision of Australian landscape, and it seems to me that it is Thomas Joolama’s painting which more fully captures this new vision as it registers the aesthetic and legal developments of early twentieth century modernity by reckoning with—not eliding—colonial violence. It does this while reaching still further back to traditional Indigenous cultural practices and knowledge formations connected to traditional land ownership that predate the traumas of colonial occupation. By contrast, Streeton’s and Lambert’s paintings merely underwrite—we might say overpaint—the logic of colonial laws that, to this day, facilitate capitalist exploitation and desecration of sacred Indigenous sites. Bedford Downs Massacre does not assert legal title to the exclusion of all others nor does it make any normative claim for the future. Instead, it presents a forensic image of the history of the present. That history is one law must keep in view if it is to acknowledge and address the legacies of occupation, violence, and exclusion in which it is implicated.