The Moral Limits of the Law: Settler Colonialism and the Anti-Violence Movement

Abstract

Anti-violence advocates in the United States often find themselves working with the contradictions of struggling for a vision of justice within the constraints of the US criminal legal system. Perhaps the greatest contradictions may be felt by many Native advocates who understand the US to be a settler colonial state. This article explores these contradictions and the limitations that this framework imposes on genuine attempts to address injustice. It also proposes a possible way out of a constraining paradox.

Her Majesty's Justice Be Done: Métis Legal Mobilization and the Pitfalls to Indigenous Political Movement Building

“…Andrea Smith (2012), drawing on the orientation to legal mobilization offered by Kimberlé Crenshaw (1988), explores the contradictions faced by Indigenous anti-violence against women activists in their use of the courts. Smith argues the contradiction for activists lies in trying to fight colonial violence through the very same courts implicated in the historical and ongoing processes of settler colonization.…”

“…Activists “must also address women who need immediate services, even if those services may come from a colonizing federal government or a tribal government that may perpetuate gender oppression” (Smith, 2012: 70, emphasis added). Thus Smith argues activists “are often presented with two dichotomous choices: short-term legal reform that addresses immediate needs but further invests us in the current colonial system or long-term anti-colonial organizing that attempts to avoid the political contradictions of short-term strategies but does not necessarily focus on immediate needs” (Smith, 2012: 70). Smith advocates Indigenous peoples deploy legal strategies for their effects and dispense with the “moral statements [those strategies] propose to make” (74).…”

TheVelof Slavery: Tracking the Figure of the Unsovereign

“…But even among those attempting to coordinate struggles among black and native peoples on a political basis, related problems arise. The contributions of Andrea Smith in the last decade are perhaps most generative on this note (Smith, 2006(Smith, , 2010(Smith, , 2012(Smith, , 2013. In a series of recent articles, Smith proposes one way to reframe the relational field of 'people of color' in North American political culture by thinking through the multiple logics of white supremacy, in relation to the enforcement of normative gender and sexuality, as a sort of permutation.…”

Confined in the Binary: The Colonial (Re)production of (Trans)Gender Normativity in Cases of Trans Imprisonment

“…I build from and extend these critiques by grounding trans rights in the context of settler colonialism. As I note throughout this dissertation, I approach legal rights as tools which play a role in securing better conditions for marginalized groups, but which remain embedded in colonial power relations (Brown, 2002;Coulthard, 2014;Smith, 2012Smith, , 2014aSmith, , 2016 ). For this reason, I am interested in understanding how gender self-determination may be pursued, but ultimately limited or neutralized, by a Western legal framework of trans rights.…”

“…Indigenous critiques of settler rights reveal how demands for self-determination are mischaracterized and neutralized by the state through promises of inclusion and recognition, which are, in effect, techniques of assimilation (Coulthard, 2014;Palmater, 2020b). While there are abundant reasons to be skeptical of the efficacy and benevolence of the settler state when it comes to challenging the colonial relationship, many Indigenous and non-Indigenous scholars working across various fields concede that human rights remain a valuable tool, at least when strategically engaged in ways that avoid strengthening state power and mechanisms of violence (Brown, 2002;Coulthard, 2014;Palmater, 2020b;Smith, 2012Smith, , 2014aSpade, 2013Spade, , 2015. With respect to this nuance, Holmes and Ferrer's (2018) argument that trans rights may be utilized as a tool to remedy discrimination experienced by Indigenous trans and Two-Spirit people bears weight, and seems to resonate with proposals to hybridize (Chatterjee, 2018) or to deploy transgender as an "analytic rubric" (Dutta & Roy, 2014); in this case, one may use trans rights for a political end without necessarily internalizing or ascribing to Western "transgender" identity.…”