Excerpted From: Deborah Cowen, Law as Infrastructure of Colonial Space: Sketches from Turtle Island, 117 AJIL Unbound 5 (2023) (47 Footnotes) (Full Document)

DeborahCowenHeraclitus's words remind us that law and infrastructure have lived in intimate relation, in practice and thought, for millennia. This intimacy is palpable in the context of settler worldmaking where colonial jurisdiction is enacted by constraining, with an eye to replacing, Indigenous jurisdiction. Here, the authority to have authority is often asserted in practice through violent attempts to control connectivity and movement. To this day, imperial powers assert jurisdiction over space through infrastructures that enhance or inhibit the motion of goods and people, like railroads, pipelines, border walls, and police. This Essay investigates the co-production of colonial law and infrastructure on Turtle Island--an Indigenous name for the continent of North America, which already highlights a different conception of jurisdiction and law through its anchor in creation stories. The brief sketches that follow emphasize the co-constitution of law and infrastructure, yet they also propose a relationship that exceeds proximity or metaphor. Law operates through the ordering of extension, and in this sense, can productively be thought of infrastructurally, as “the movement or patterning of social form.” This Essay argues that approaching law infrastructurally foregrounds the contingency of seemingly solid structures, including centrally that of settler jurisdiction.

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If colonial jurisdiction is normalized, then international law is understood to pertain to relations between nation states, facing “outwards” from “domestic” national space. But the settler state remains an “internal” landscape of multinational legal jurisdiction. Colonial jurisdiction “holds us captive” but never fully erases “the multiplicity of Indigenous legal orders exercised daily across the land.” Replacement of Indigenous orders with colonial ones is at the core of settler space-making, and yet it is far from a fait accompli. Audra Simpson explains how in this settler colonial context, multiple sovereignties persist but “cannot proliferate equally or robustly.”

The survivance of Indigenous sovereignties haunts settler authority. In sharp contrast to the assumed exclusivity of Euro-western jurisdiction, the question of how to share and care for lands and ecologies and with whom, is often at the center of Indigenous treaties. Leanne Simpson describes the Dish with One Spoon treaty between the Nishnaabeg and Haudenosaunee nations in this way: “recorded with a wampum belt, as an agreement of mutual responsibility in respecting and caring for shared hunting territory. Neither nation demanded a relinquishing of sovereignty from the other.” Treaties that Indigenous people made with settlers also assumed persistent multinationalism; they engineered consent to preserve autonomy. The Haudenosaunee refused early Dutch proposals for a paternalistic relation where one nation proliferates more robustly, and instead insisted on a Two Row Wampum that “makes manifest the joint decision by two parties to remain independent together.” Haudenosaunee people work endlessly to remind settler governments of that joint decision to this day.

Today, across Turtle Island, colonial infrastructure is under fire. Blockades proliferate at sites of invasive extraction and circulation, but so do actions like the Treaty Alliance Against Tar Sands Expansion, “an expression of Indigenous Law prohibiting the pipelines/trains/tankers that will feed the expansion of the Alberta Tar Sands,” signed by over fifty Nations and Tribes from both sides of the border. The Alliance explains their work as “part of an Indigenous Sovereignty resurgence taking place all over Turtle Island where Indigenous Peoples are reasserting themselves as the legitimate governments and caretakers of their territories.” Anne Spice highlights how the protection of Indigenous peoples' “critical infrastructures” spurs the refusal of invasive colonial ones. Settler states have organized violence through law as infrastructure, but they hold no monopoly on either constituent concept.

When Lauren Berlant asks how social formations can reproduce while also transforming themselves and the worlds they are part of, they find an answer in infrastructure. LaDuke and I follow suit, calling infrastructure “alimentary” when it nourishes projects and peoples working for justice, decolonization, and planetary survival. Experiments are underway across the continent to build decolonized systems of making and moving. These approaches, like the sketches above, proceed from a recognition that law is a system shaping relations with lands, elements, and creatures. Implicitly or explicitly, they recognize that law and infrastructure are not simply strange bedfellows, but that law is infrastructure for transforming material and affective systems assembled to order or extend life.

Professor, Department of Geography & Planning, University of Toronto, Toronto, Canada.