Justice appears. At Standing Rock, for example. Law represents and negates. In North and South Carolina, for example. Law and justice stand in relation to, in and as the space of appearance. The dialectic of justice is possibility. Law is pure negation.
Justice cannot be seen. It is unseeing and cannot be engaged in a mutual regard. It is seen to be done, whether from the position of the land, the water, the Native or the Stranger.
Law represents the state. In a settler colonial society that state negates the possibility of lives that might be lived, from land to water, the Native or the person shot by police.
For justice: those who endured snow and tear gas at Standing Rock won, despite an eviction order, against Big Capital, aka Energy Transfer Partners. The most substantial gathering of Native people since the Battle of Greasy Grass (aka Little Big Horn) worked. Mni wiconi (water is life). The water protectors have opened a new means of thinking about how to protect non-white and non-human life under and after white supremacy.
On the side of law: a video showing a police officer shooting a man running away eight times in the back and then planting evidence resulted in a mistrial in the case of Walter Scott, shot by police in Charleston, South Carolina. Keith Lamont Scott shot to death in a parking lot in Charlotte, North Carolina while waiting to collect one of his children: no charges are brought. Do Black lives matter? Not to the law. What is law under white supremacy? It is whatever the police say it is.
Under white supremacy, law regulates and controls the space of a given jurisdiction. You will recall that Keith Lamont Scott was shot by Charlotte police officer Brentley Vinson on 20 September 2016. Last week, Andrew Murray, the District Attorney in Charlotte, announced that no charges would be brought. In doing so, he released a substantial 22–page single-spaced document of justification.
The central question is the gun owned by Scott. The video evidence does not show beyond a reasonable doubt that he had the gun in his hand. It does clearly demonstrate that he never raised his hands in such a way that he might fire that gun, even if you believe that he was holding it. Is that sufficient reason, beyond a doubt, for a person to be shot to death? The DA sets out to displace that simple question with an array of questionable and marginal evidence.
Once again, repeated witness statements that Scott was reading a book are discounted, as were the claims that Michael Brown had his hands up. Perhaps a Black man reading is just too improbable for the police. We are told there was no book. But there was 'a purple composition notebook, found wedged between the center console and the front passenger seat.' Were witnesses asked what kind of book Scott was reading? Was anything written in the notebook that he might have been reading? These things we are not told.
Once again, photographs created at the location after the event are used to impeach witness testimony. Police created photographs from the spot at which witnesses said they were standing and used them to ‘prove’ that it would have been ‘very difficult, if not impossible’ for them to have seen what they claimed to have seen. However, people are not geometric points. We can and do move our heads, lean or stand on tip-toe to see things.
If we look at the two photographs supplied by the DA, that point seems unproven: the foliage of the trees does get in the way but does it make it impossible to see people? Notably, this witness said he had ‘often’ seen Scott reading in that spot before.
Fear Is Reason
When we cross-reference this version of the necessity of seeing with the dismissal of what was so very clearly seen in the case of Walter Scott, the negation is complete. To indict a police officer, an absolutely clear view of a palpable crime is required. That condition was fulfilled in the case of Walter Scott. However, to convict that officer of murder, there is no visual evidence whatever that will convince at least some white people beyond a ‘reasonable’ doubt.
Law and reason necessarily interact. A person must be held capable of understanding the charges against them to be tried and to have known the difference between right and wrong to be convicted. Police officer Michael Slager asserted, like so many police, that he felt ‘total fear’ in his encounter with Walter Scott. That totality, which eclipsed all reason, becomes the enabler of ‘reasonable’ doubt. Fear cannot be doubted, fear is reason. The calm disposition of the officer as he shot, the steadiness of his hand before and after, the calculated way he moved the taser to give him a case for the shooting: none of this counters the verbal expression of fear.
The Charlotte DA states that a cop named ‘Wiggins is observed crouching down, appearing to be reaching with one hand and moving something from near Scott to back between Wiggins’ feet, and then standing up.’ This 'thing' is claimed to be Scott's gun. Nothing here indicates that Wiggins might not have removed it from Scott's ankle holster and dropped it. It used to be thought that cross-examination was the way to determine such issues. Could we not compare the action of Slager in moving the taser? Instead, this is given as evidence that Scott had the gun in his hand.
Justice is another place altogether. A space of appearance would be a space in which there was not law but justice. Justice cannot be deconstructed, dissembled or disavowed. It is, like the space of appearance, known when it comes into being. Standing Rock became a space of appearance and in it, perhaps only for an interim period, justice became visible.
I do not mean that the environmental impact study now ordered was justice. That is a measure of expedient delay, all too likely to be overturned by the incoming administration. What Standing Rock did was make the long history of injustice to Native peoples visible and open the possibility of repairing that history.
On December 4, 2016, a group of veterans led by Wes Clark Jr. (son of the former chief-of-staff Wes Clark) formally apologized to Native people for the genocide, going down on one knee before Lakota elder Leonard Crow Dog in a long and resonant moment of silence. In accepting and forgiving, Leonard reminded those present that ‘we do not own the land. The land owns us.’ Settler colonial law cannot express such a relation and so it has abrogated its own treaties.
The change in relation was furthered by the US secretary of the interior, Sally Jewell, who noted that the decision ‘underscores that tribal rights reserved in treaties and federal law, as well as nation-to-nation consultation with tribal leaders, are essential components’ of future discussions. That would be a very different state than the one we have now.
From the perspective of the dismayed settler, the next four years appears long. From the Lakota perspective, five hundred years into a disastrous co-habitation, especially over the last two hundred, it’s a detail. Fifty years ago, just before the marches in Selma Dr. King recognized that ‘our struggle is often difficult and frustrating. It has its dark and desolate moments.’ He believed that, nonetheless, ‘the arc of the moral universe is long but it bends toward justice.’ How long that arc is. How it may tend towards justice but never arrives.
King famously also believed in the ‘promised land of collective fulfillment.’ That land will not necessarily be the same for all of us. Lakota land, Palestinian land, Detroit land: these lands will not be the same as that of the one nation exalted by settler colonialism. So unlike King, lacking his faith perhaps, I do not see justice as a single arc but as a dialectic. It will involve undoing (of whiteness, of settler colonialism, of heteropatriarchy) rather than simple arrival. lt comes from (an)other perspective again. The Lakota get it. Black Lives Matter get it. Afro-futurism, queer futurities, trans*formations get it. We may not all get there with you. But in the long dark night of the soul that lies ahead, Standing Rock have lit the way.