Indigenous Sovereignty, Common Law, and Natural Law

Abstract

Renewed calls for Indigenous sovereignty in North America have led some scholars to search Western philosophy for thinking that affirms these claims. Many suggest that the common law tradition offers resources to do so. In this article, I argue that common law is limited in its capacity to endorse Indigenous political legitimacy. Instead, I suggest that supportive elements in common law are trace remnants of natural law thinking. Further, natural law as a concept resonates with contemporary Indigenous philosophy that maintains that nonhuman nature is suffused with morality and normativity, making the natural law tradition worth considering for defenses of Indigenous sovereignty. I propose beginning with the work of Bartolomé de las Casas. While my aim is not to defend either Lascasian nor Indigenous natural law, I conclude that they should be part of efforts to understand the ongoing conflicts between Indigenous nations and colonial states.