Indigenous Sovereignty, Common Law, and Natural Law

The forthcoming article “Indigenous Sovereignty, Common Law, and Natural Law” by Samuel Piccolo is summarized by the author below.

In recent years in Canada and the United States, there have been significant protest movements by Indigenous peoples aimed at increasing—if not achieving entirely—their sovereignty on traditional territories, especially in response to the Dakota Access and the Coastal Gaslink pipelines. The spirit behind these protests has also appeared in Supreme Court cases in both countries, such as in McGirt v. Oklahoma and Tsilthqot’in Nation v. British Columbia. These claims to sovereignty, I show, are based on traditional Indigenous concepts of sovereignty that reject modern Westphalianism, and instead understand sovereignty to involve sovereignty with—not over—land and other beings in accordance with normativity inherent in nature. Indeed, I argue that Indigenous scholars describe their understandings as flowing from Indigenous natural law. Amid these political and legal struggles, scholars have suggested that North American common law has the resources to endorse some notion of Indigenous sovereignty that at least resembles the claims made by Native peoples. They look to legal precedents including the Royal Proclamation of 1763, the Treaty of Niagara, and the United States Supreme Court decision Worcester v. Georgia. In this article, I argue that the North American common law tradition is in fact limited in its capacity to endorse Indigenous political legitimacy. While there are some precedents in the common law that appear to endorse Indigenous sovereignty, there are many others that do not. Not only does the main common law principle of stare decisis (deference to established precedent) counteract Indigenous claims to sovereignty because by now American and Canadian state sovereignty is established, under common law it is unclear how state courts could undermine their own sovereignty.  

But the limitations of common law do not mean that North American has no resources to endorse Indigenous sovereignty. By closely examining the strongest defence of Indigenous sovereignty in North American law, Worcester v. Georgia, I show that there are elements of natural law reasoning in the defence. Given that natural law as a concept resonates with contemporary Indigenous philosophy that maintains that non-human nature is suffused with morality and normativity, I suggest it is worth considering the natural law tradition for defenses of Indigenous sovereignty. I propose beginning with Bartolomé de las Casas, who I show understands natural law and sovereignty in ways that may resemble the claims of Indigenous societies to territory. While my aim is not to defend either Lascasian or Indigenous natural law’s account of sovereignty, I conclude that they should be part of efforts to understand the ongoing conflicts between Indigenous nations and colonial states. In this article I show that when we think of questions of Indigenous sovereignty, we cannot think solely of conventional positive law.  

About the Author: Samuel Piccolo is a recent Ph.D. graduate from the University of Notre Dame. Their research “Indigenous Sovereignty, Common Law, and Natural Law” is now available in Early View and will appear in a forthcoming issue of the American Journal of Political Science.

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The American Journal of Political Science (AJPS) is the flagship journal of the Midwest Political Science Association and is published by Wiley.

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