"Sovereignty is an especially odd phenomenon. … there is a disconcerting uncertainty as to what it is exactly, or where it is to be found, or who has it and who does not, or where it came from in the first place, let alone what is happening to it now," wrote R.B.J. Walker in a 1996 essay, Space/Time/Sovereignty.
Walker's statement resonates today. The world sees increasing sovereignty conundrums, including "humanitarian war"—nations bomb other nations in the name of protecting human rights; the economic eclipse of state political borders by transnational corporations; and ecological crises that know no state borders. Into this mix stride Indigenous Peoples, demanding self-determination within the global nation-state framework of the United Nations.
The Economist recently reported, "Australians should soon get the chance to vote on [a] constitutional amendment concerning aboriginal rights…, in some way acknowledging aborigines as the first Australians. But just how far it should go is a matter of intense debate." A “First Nations National Constitutional Convention” at Uluru put forward the proposal in May 2017, when delegates called for "Makarrata"—"coming together after a struggle"—accomplished by a "First Nations voice enshrined in the constitution."
The Uluru Statement reproduces sovereignty conundrums. It asserts, "Aboriginal and Torres Strait Islander…sovereignty…has never been ceded or extinguished, and co-exists with the sovereignty of the Crown." The Statement then asks, "How could it be otherwise?" But, I ask, how can Aboriginal sovereignty—from "time immemorial"—coexist with British sovereignty created 200 years ago? What does co-existing sovereignty mean? If colonialism signifies an invasion, yet the original peoples retain their sovereignty, how do we get to the conclusion the two co-exist—especially when the invader claims a dominating sovereignty and tries to eradicate the original peoples? The question echoes the puzzle posed by "reconciliation" programs like those in Canada, whereby colonial invaders—who rejected a conciliatory approach from the start—ask original peoples to forgive and forget and work within the Canadian state system. A skeptical view sees this not as a resolution to colonialism, but as another effort at assimilation.
We need a much deeper examination of sovereignty if we want to resolve these questions. As Carl Schmitt put it in his now-classic 1922 essay, "Political Theology," "A jurisprudence concerned with ordinary day-to-day questions has practically no interest in the concept of sovereignty. Only the recognizable is its normal concern; everything else is a "'disturbance.'"
The classical state definition of "sovereignty" as "supreme coercive power" does not supply an appropriate model for non-state peoples. Early colonists arriving on this continent looked for Native "kings," and presumed that "chiefs" were monarchs, not understanding Native Peoples' methods of self-determination. Later U.S. treaty negotiators insisted Native Peoples adopt monarchical forms. General Sherman in 1868, for example, in negotiating the return of the Navajo People to their homelands, demanded the Navajos delegate 10 of their number as "principal men," and for these 10 to "select a chief." When they had done so, and Barboncito had been selected, Sherman declared, "Now from this time out you must do as Barboncito tells you, with him we will deal and do all for your good. When you leave here and go to your own country, you must do as he tells you, and when you get to your country, you must obey him or he will punish you, if he has not the power to do so, he will call on the soldiers and they will do it."
The U.S. thus imposed a monarchical form of government—supported by U.S. Army powers—on the Navajo. A half-century later, the U.S. Congress (under its supposed "plenary power" over Indians) enacted the 1934 Indian Reorganization Act, which did what its name says: it "reorganized" Native Peoples—this time into a business council model of administration, in violation of traditional forms that did not involve "voting" and "representation."
Critiques of the "normal" doctrines of U.S. federal Indian law—like "plenary power" and "trust"—provide a "disturbance" of U.S. sovereignty theory, exposing federal Indian law as an outgrowth of "Christian discovery"—to this day the legal foundation for United States' claims of domination over Indigenous Peoples and their lands. According to federal Indian law, "tribal" peoples have a lesser form of sovereignty, which is not actually sovereignty, but dependence. As a federal court put it in 1973, "an Indian tribe is sovereign to the extent that the United States permits it to be sovereign—neither more nor less" [United States v. Blackfeet Tribe]. Based on this theory, the United States has forced Indigenous Peoples off their lands, undermined their social and governmental organizations, and refused to acknowledge their original powers of self-determination.
The Uluru Statement suggests a notion of sovereignty as shared life—not supremacy and domination: "This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty" [original emphasis].
We may read the Uluru Statement as a re-understanding of self-determination that departs from conventional definitions of supreme power, domination, and superiority. This possibility deserves careful thought, not only to resolve Australian colonization, but also as a reexamination of the Gordian knot of state sovereignty binding global politics in a zero-sum situation: Every state acts as if it has a supreme right to coerce obedience from its subjects and to engage in conflicts with every other state. Thomas Hobbes said the "state of nature" was a "war of all against all"; the evidence points the other way: state civilization produces universal, unending wars.
If I'm reading it right, the Aboriginal and Torres Strait Islander Peoples are willing to recognize a shared sovereignty with the colonial invaders because even the invaders—by now—have been born from earth, are "attached thereto," and "must one day return"… in the same lands. But we must be cautious; the conundrums persist: The Statement's call for "a rightful place in our own country [and] power over our destiny" [original emphasis] collides with the assertion that these changes will cause "our children…will walk in two worlds…." The Statement suggests "a fuller expression of Australia’s nationhood," but expresses "aspirations for a fair and truthful relationship with the people of Australia" [emphasis added].
Australian commentators have grasped at the possibility the Uluru Statement means the Aboriginal and Torres Strait Islander Peoples are ready to cede original self-determination for an assimilation into the Australian state. As one Australian newspaper columnist put it, "There are not two sides. We are all Australians." Another commentator—a law teacher and adviser to the Uluru First Nations Convention—also took an inclusionist view: "the continent’s first political communities, whose age is counted in millennia rather than decades – are seeking to be afforded proper recognition within Australia’s federal association. To be sure, the forms of recognition sought by First Nations are not identical to those enjoyed by the States and self-governing Territories. But they undoubtedly share the federal spirit that underpins the Australian constitutional order."
Inclusionist views may assuage anxieties for colonial-settlers, but do they make sense to Indigenous Peoples? And does the combination of the idea that First Nations "are not identical…to States" within "the federal spirit…of the Australian constitutional order" mean anything different from colonialism's persistent effort to assimilate what it cannot eradicate? Native theorists today are re-asserting "sovereignty." But the definitional question—"what exactly is sovereignty?"—persists. Whether, and in what way, Aboriginal and Torres Strait Islander Peoples may integrate any form of sovereignty into a shared self-determination remains an unanswered question. The core conundrum remains: how do we define "the people," community, and political identity without invoking terms of domination?
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.