Under the Sign of Sovereignty: Certainty, Ambivalence, and Law in Native North America and Indigenous Australia

The notion of “sovereignty” is saturated with the certainty of jurisdictional and territorial authority over peoples and places. Yet nothing is simultaneously so certain and yet so fraught with precariousness as the practice of sovereignty— globally or locally.¹ This uncertainty is read through the sign of its failure: territories that fissure and are fought over by force and by fiat, as well as by a precedential practice that continues to reinscribe states with their right to govern, and in the case of democratic systems, laws to also check the exercise of that governance. This uncertainty is especially precarious and, in different ways, onerous in Indian country.

Indian country² may be conceptualized as spaces of Indigeneity that are framed by settler regimes. Once independent and autonomous, the spaces that are conceptualized and peopled and known as “Indian country” now have limited forms of political autonomy that may be exercised, but, in a double-bind situation, that autonomy is exercisable only because recognition is conferred upon those peoples to exercise this autonomy. This recognition, often temporalized in a moment (that of “treaty making,” for example) guarantees Indian polities their sovereign status.

These forms of recognition are historical and juridical and embed within them the intentionality, the ambivalences and exigencies of settlement itself: dispossession, protection, alienation, incorporation, exclusion, assimilation, containment, all of which encode the needs and desires of states that are new, that are in process, that are complicated and struggling always not to fissure. All of this, coupled with massive immigration, occurs in the face of the greatest threat to settler state security and the economic, political, and moral right to govern these entirely new spaces: Indigenous peoples, their governmental and philosophical systems, and most significantly, their lands.

It is in this context that Indigenous sovereignties are enunciated and enacted today. This is a context of general “constructedness” and also fragility, a frame of precariousness that has been inscribed in law through law itself.³ If Indigenous peoples ironically are to protect their lands and their people from further encroachment and expropriation (a protective measure) they might have recourse to the very instrument that has been used to take their lands and authorize their disenfranchisement and misery: law. Law is to protect them in the present; yet their sovereignty, granted by law, threatens the very exercise of that sovereignty.

These jurisdictional, temporal, historical, and ultimately spatial issues are taken up in theoretical and practical depth in Kevin Bruyneel’s The Third Space of Sovereignty: The Postcolonial Politics of U.S.–Indigenous Relations. In this theorized history of law, policy, and Indigenous political action, Bruyneel offers an account of U.S. empire building and Indigenous engagements with that process through the concept of the “third space.” The “third space” is defined first by what it is not: “that which resides discretely inside or outside of the American political system but rather exists on these very boundaries, exposing both the practices and the contingencies of American colonial rule” (xvii, emphasis mine). Without taking up Derrida directly, Bruyneel further describes the third space as a supplemental site that is unassimilable to the institutions and discourses of modern liberal democratic settler-state and nation. The third space is thus a site of pronounced and moveable activity.

Bruyneel is heavily indebted to Homi K. Bhabha’s writing on identity in his thinking through the politics of a moment: the distributive politics of multiculturalism in England, which forced an essentialized rendering of identity for a multicultural politics of recognition. ⁴ Bhabha’s critical rendering of identity was to view it as hybridity (always), a homologue of systems of signification in a constant conversation with each other rather than fixed, essential, and somewhat characterological configurations of difference...