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22:2 University of California Davis Journal of International Law and Policy 81


This article examines the concept of sovereignty and its application in the context of European colonization of North America. It seeks to define sovereignty so as to avoid Eurocentric notions that denied sovereignty to Indigenous peoples. The article does this by distinguishing between defacto and de jure sovereignty: the former depends on actual possession and control of a territory, whereas the latter depends on the application of a particular legal system. Unlike de facto sovereignty, which is empirical, de jure sovereignty depends on a choice of law. Because more than one legal system can be applied to territories occupied by Indigenous peoples, de jure sovereignty is relative. European claims to sovereignty might thus be valid in the European law of nations, but not in the legal systems of the Indigenous peoples whose territories were being colonized. To avoid Eurocentric notions that denied sovereignty to Indigenous peoples, the article argues that claims to sovereignty in North America need to be assessed by a de facto standard that can be applied objectively and universally.