Shared Indigenous and Crown Sovereignty: Modifying the State Model

Abstract

When European nations colonized North America, their dealings with one another were based on the state model of territorial sovereignty. At the same time, they acknowledged the independence of the Indigenous nations and entered into nation-to-nation treaties with them, whereby sovereignty was to be shared. Consequently, the Westphalian concept of absolute state sovereignty has never applied in North America. While the European nations acquired sovereignty vis-à-vis one another in the international law system that they created, the Indigenous nations retained internal sovereignty and the right to continue governing themselves. This modified concept of state sovereignty has been acknowledged by the United States Supreme Court since the 1820s and is gradually being accepted in Canada. It is consistent with, and even required by, the United Nations Declaration on the Rights of Indigenous Peoples, in particular that document’s affirmation of the right of Indigenous peoples to self-determination and their right to internal self-government.