Abstract

From Standing Rock to Wet’suwet’en territory and across North America, land and water defenders on the frontlines of Indigenous-led struggles are facing increasingly militarized and unrestrained state violence. This paper considers what this alarming trend might teach us about the relationship between law and violence in settler colonial contexts where the state’s legal authority remains tenuous at best. Conventional understandings suggest that the police serve as the coercive arm of the state which enforces law within its territorial boundaries, whereas the military defends the state from external threats extending beyond its borders. However, in settler colonial contexts the relationship between the police and military is not so straightforward. In Canada, the national police force was founded to expand the state’s territorial claims by dispossessing Indigenous peoples of their lands. On the edges of state power, police incursions into unceded Indigenous territories work not to enforce the law; here, the police precede the law, serving to actively constitute the state’s legal authority. This points to a fundamental paradox of the state in colonial contexts – that constitutional law is unlawfully constituted. I argue that this underlying paradox helps to make sense of police violence against Indigenous peoples asserting sovereignty on the frontlines of conflicts over resource extraction today. Where police forcibly remove Indigenous peoples claiming legal and territorial jurisdiction over their unceded lands and waters, these actions should be understood not as law-enforcing violence, but rather as the law-establishing violence of colonial dispossession.