Abstract: This is a study of Māori and Pākehā women’s contracting and civil litigation in the first eighty years of the English common law in Aotearoa/New Zealand c.1840-1920. It provides the first detailed survey of how colonial women were acting as legal subjects under the civil law. Contracts included marriage, land purchases and sales, consumer contracts, labour, employment, and the buying and selling of goods and chattels and services. During this period the common law operated within highly imperialist values of liberal economic exchange and individual, male, property ownership in a land driven economy. Women’s ability to contract with another party, own property, their appearances in the courts of law and their legal subjecthood, was understood and determined by their marital status under the common law doctrine of coverture. Upon marriage, a woman’s legal status changed from feme sole to feme covert bringing her under the ‘cover’ of her husband. Coverture subsumed a woman’s legal existence under that of her husband meaning a woman’s ability to act under the common law was severely curtailed. Despite coverture, women appeared in contract cases in the colony’s courts in significant numbers and under diverse circumstances, forcing the courts to consider women as legal subjects. Māori women’s legal status under marriage law was distinct. Māori women were British legal subjects under article three of the Treaty of Waitangi and customary laws were recognised by the common law to facilitate Crown and settler land purchases. Marriage and property laws were changing over the period under review. The mobile and masculine colonial frontier meant geographical separations between married couples, desertion, legal separations and de facto relationships were common. The Married Women’s Property Protection Act 1860 and the Married Women’s Property Protection Act 1870 were utilised by women and increased their legal agency. Couples made use of the Divorce and Matrimonial Causes Act 1867 and Divorce Act 1898. A husband’s death restored women’s property rights and many widows took on the task of managing family property. The Married Women’s Property Act 1884 redefined women as autonomous legal subjects who could own property under the common law and contract as autonomous legal persons. This study finds that common law doctrines were often unsuited to the realities of colonial life where families were economically dependent on wives’ labour and trading ability. Women operated as legal subjects who entered into legal agreements regularly, challenging orthodox legal applications and common law presumptions surrounding women’s relationship to property. Meanwhile, colonial conditions, married women’s property laws, divorce, widowhood and Māori customary law altered women’s standing before the law. Women, families, and the courts negotiated women’s complex legal position to facilitate law, order and the buying and selling of property within a system of colonisation that was concerned with organising property along gendered and racial lines.


Abstract: This paper explores how the colonial construction of Indigenous women as ‘unfit’ mothers of ‘inferior’ status justifies state interference in their lives, perpetuates other harmful stereotypes within the public consciousness and blames Indigenous mothers for their life conditions. Sterilization is but one weapon used by the Canadian state to violate Indigenous women’s right to reproductive autonomy, both historically and at present. Recent Canadian reports investigate Indigenous women’s claims to forced tubal ligation procedures and how coercion within colonial institutions stripped them of their power and identity through the removal of choice. Multiple class-action lawsuits are currently underway in Canada, where the voices of Indigenous women who have suffered the intergenerational impacts of colonialism in their daily lives and at the hands of western medical institutions are demanding justice and recognition of their basic human rights. Despite at least five generations of state-directed violence against them, Indigenous mothers continue to resist colonization of their bodies, land, and communities. Through reconnecting to their past, present, and future, Indigenous mothers are remembering their inherent roles and responsibilities as mothers of the nation. They have never forgotten their power nor their role as protectors of their people. They have always resisted. I aim to amplify the voices of Indigenous women in a country that has silenced them for too long and acknowledge that I by no means am interpreting their work through my point of view – I am giving them the space they deserve