First Nations readers are advised that this piece includes references to the ongoing effects of colonial violence and dispossession on Aboriginal and Torres Strait Islander communities

In recent decades, prompted in part by the rise of critical Indigenous studies, the concept of sovereignty has come under increasing scrutiny (Moreton-Robinson, 2006). In particular, critical theory scholarship has called attention to the ontological instability of the term, arguing that sovereignty is not merely the absolute, unchallenged authority of a nation-state over its territory and people, but also a socially constructed and historically contingent phenomenon (Barkin, 2021; Bartels et al., 2019). In this view, sovereignty has no fixed essence; rather, it is constituted by a set of intersubjective norms and discourses that congeal over time, giving the state its appearance of stability and naturalness (Butler, 2006, p. 82). For sovereignty to sustain itself, therefore, it must be performatively enacted and continuously (re)produced through interactions between the state and its people (Weber, 1998, p. 92-93). Yet, despite this conceptual shift towards viewing sovereignty as a performative constitution, there remains an internal tension within the field between rejecting the concept entirely, given its imposition by colonial powers, and reappropriating it in ways that further Indigenous self-determination (Mathieu, 2021; Robbins, 2010, p. 258-259). Accordingly, this essay argues that the concept of sovereignty is a double-edged sword in understanding ongoing Indigenous and non-Indigenous relations in Australia. While it can serve as a productive tool for immediate political resistance, it also risks simultaneously being co-opted by the very power structures that Indigenous peoples seek to destabilise, ultimately reinforcing the Australian settler state’s claim to legal sovereignty (Williams et al., 2004). The essay will begin with a concise overview of the key differences between Westphalian and Indigenous sovereignties, illustrating how the latter emerges from a radically different ontology that is “inextricably connected to being in and of our lands” and rooted in relationality (Bauder & Mueller, 2023; Moreton-Robinson, 2020, p. 259). Second, drawing on Judith Butler’s (1988) broader work on performativity, which challenges the idea of a pre-discursive reality, it will argue that sovereignty may be understood not only as the foundation upon which nation-states rest, but also as what discursively constructs these states in the first place (Mathieu, 2021, p. 46). From this perspective, sovereignty is a useful concept, as it may help destabilise rigid assumptions about the nature of political authority (Mathieu, 2021, p. 42-43). This is illustrated by the case of the “progressive No” campaign during the 2023 Indigenous Voice referendum, which, although seen by many as impractical or overly idealistic, challenged the value-laden foundations of Australian sovereignty and, in doing so, sparked a much broader critical discourse on sovereignty than the “Yes” campaign (Biddle et al., 2023; Muldoon, 2024, p. 260-261). Third, it will argue that while sovereignty can unsettle the assumed legitimacy of state power by revealing it as discursively constructed, it can also marginalise alternative forms of governance by deeming them illegitimate (Moreton-Robinson, 2006; Shrinkhal, 2021). Ultimately, the concept of sovereignty is neither entirely useful nor entirely ineffective in understanding ongoing Indigenous and non-Indigenous relations in Australia. This is because sovereignty, by its nature, lacks a fixed ontological grounding and is continuously created through its enactment (Weber, 1998). As a result, it is inherently a double-edged concept, both empowering and restricting, depending on the sovereignty discourse that prevails at any given time (Weber, 1998).

To understand how sovereignty operates as a double-edged sword, it is important to first clarify the conceptual differences between Westphalian and Indigenous sovereignties. Westphalian sovereignty, originating from the Treaty of Westphalia in 1648 in Europe, is a principle in international law that refers to the exclusive legal and political sovereignty of a modern nation-state over its territory (Schrijver, 1999). This concept emphasises the authority of states within their borders and the non-interference of external powers in their domestic affairs (Bauder & Mueller, 2023, p. 158). Although criticised for its Eurocentric nature and its historical role in justifying land seizure and colonial oppression, Westphalian sovereignty remains a durable norm in the modern international system (Bauder & Mueller, 2023, p. 160-161). In contrast, Indigenous sovereignty refers to the inherent rights and authority of Indigenous peoples to govern themselves, their lands, and their resources (Bauder & Mueller, 2023, p. 166-167). This is not to say that there is a single, unified definition of Indigenous sovereignty, nor that it is uncontested from within (Keal, 2016). Rather, it broadly represents Indigenous peoples’ fundamental refusal to be excluded or subsumed, often, though not invariably, in opposition to colonial state structures (Keal, 2016). Indigenous sovereignty is therefore not solely a legal concept but an enduring part of Indigenous peoples’ identities and their distinct way of life (Bauder & Mueller, 2023, p. 165). It encompasses a wide range of concepts, from cultural preservation, control over ancestral lands, and self-determination to more expansive notions, such as the assertion of sovereign power (Bauder & Mueller, 2023). For instance, Victorian Senator Lidia Thorpe’s concept of “Blak sovereignty” involves the establishment of a “Blak Republic,” aiming to replace the existing constitutional monarchy with a system of shared sovereignty between Indigenous and non-Indigenous Australians (Morse, 2023). In this sense, the concept of sovereignty can be understood through radically different ontologies, varying in its interpretation as legal or political, as absolute or malleable, or as a fixed principle or a discursive practice (Moreton-Robinson, 2020). As a result, sovereignty is, as Stephen Krasner (1999) aptly put it, an “organised hypocrisy.” This means that while we may have an abstract understanding of what it means for a modern nation-state, such as Australia, to be sovereign, this ideal type of sovereignty is, in fact, continuously shaped and (re)constituted by the prevailing normative discourses of our time (Krasner, 1999). As such, any disruption to these very discourses of sovereignty leads to sovereignty, as something recognised, coherent, and hegemonic, being itself destabilised and disrupted (Weber, 1998, p. 89). Therefore, sovereignty is never fully realised; it is always in a process of becoming, falling short of fully embodying an idealised version of itself (Butler, 2006; Bartels et al., 2019, p. 134).

To further understand how the concept of sovereignty functions as a double-edged sword in understanding ongoing Indigenous and non-Indigenous relations in Australia, it is useful to consider Butler’s work on performativity. Working from an anti-foundationalist and post-structuralist perspective informed by the works of Derrida, Austin, and Foucault, Butler’s (1988) theory of performativity centres on the notion that subjectivity is not a fixed state of being, but a continuous process of becoming. For Butler (1988), a subject is never stable or coherent; rather, it is constituted through repeated acts, gestures, or speech, which retroactively create the illusion of an inner “self” driving such actions. Consequently, a subject’s agency lies in its capacity to vary the repetition of discourses and norms (Butler, 1993, 2009). Where Butler’s theory of performativity offers valuable insight into the study of Australian sovereignty is by emphasising that social realities are only “made real” to the extent that they are performed (Weber, 1998). Just as subjectivity is continually constructed through performative acts, Australian sovereignty can also be interpreted as enacted through repeated discourses and legal practices, which give it the illusion of being natural and unquestionable (Weber, 1998, p. 90-91). This is, however, not to suggest that there is no materiality to the Australian sovereign state, but rather that its materiality is itself constituted through the very expressions and practices that claim to represent the sovereign state (Weber, 1998, p. 92).

This performative understanding of sovereignty is reflected in the discourses employed by the “progressive No” campaign during the 2023 Voice referendum. For example, Victorian Senator Lidia Thorpe, a leader of the Blak Sovereign Movement (BSM), has repeatedly emphasised that Indigenous sovereignty simply cannot coexist with the sovereignty of the Crown, as Indigenous people are the original and only sovereign of their lands (Hall, 2023). In a speech, she famously stated, “The colonisers say that they are ‘sovereign.’ We say that we are sovereign” (Gregoire, 2022). While this may at first seem to be merely a proud declaration of enduring cultural connection to ancestral lands and a call for Indigenous self-determination, a closer reading reveals a deeper critique: Thorpe is essentially asserting that while Australian sovereignty strives to present itself as “pre-given” and “natural,” it, in reality, lacks a stable and enduring ontological grounding (Weber, 1998). Through a Butlerian lens, this statement by Thorpe can also be read as a subversive parody (Butler, 1993, 2009). By asserting, “We say that we are sovereign,” Thorpe is reclaiming the language of sovereignty in a way that challenges and parodies the Australian settler state’s claim to legal sovereignty (Butler, 1993, 2009). Specifically, by framing Indigenous sovereignty as a form of sovereignty that stands equal to and challenges state sovereignty, she is revealing how Australian sovereignty is only realised through the very practices, utterances, and gestures that proclaim it (Weber, 1998). Ultimately, the concept of sovereignty is a double-edged sword in understanding ongoing Indigenous and non-Indigenous relations in Australia. While, by adopting the language of sovereignty, Indigenous peoples may find themselves placed in a binary opposition: the state as the “default” sovereign and Indigenous peoples as “contesting” that sovereignty, it also enables them to engage in a kind of “comic” resistance to Australian sovereignty (Weber, 1998). After all, echoing Butler (2006), if sovereignty is understood as a culturally sanctioned “doing,” then the possibility to “undo” must also be inherent within the very mechanisms that construct and enforce sovereignty in the first place.

Furthermore, while the concept of sovereignty enables Indigenous peoples to assert equal standing with the Australian settler state, rejecting the idea that their authority is secondary or derivative, it can also marginalise alternative forms of governance by deeming them illegitimate (Moreton-Robinson, 2006). This tension is evident in the landmark case of Mabo v Queensland (No 2) (1992). In this case, the High Court recognised Indigenous peoples’ connection to land and waters under traditional laws and customs, while still upholding the settler colonial legal system of land tenure (Reynolds, 1996). Although widely celebrated as a victory for overturning the legal doctrine of terra nullius, the decision continues to constrain Indigenous sovereignty in several ways (Gray, 1997, p. 62-63). First, native title is not equivalent to land rights (Gray, 1997, p. 56). That is, native title does not provide Indigenous people with legal ownership of their lands and waters; rather, it merely recognises their pre-existing rights (Gray, 1997, p. 56-57). In this regard, the High Court’s judgement was limited to addressing the consequences of the settler colonial assertion of sovereignty, rather than questioning the legitimacy of the “act” of asserting sovereignty itself (Gray, 1997, p. 50-51). Second, native title is neither an Indigenous title nor a common law title; instead, it exists in the “space” between these two legal systems (Pearson, 1997). The common law only recognises Indigenous title in certain circumstances, but Indigenous law continues to recognise entitlement even in cases where the common law does not (Pearson, 1997). Native title is, therefore, about the recognition of Indigenous law by the common law (Pearson, 1997). In this sense, the Mabo decision has effectively denied Indigenous peoples the capacity to question the very validity of the sovereignty that gave rise to the High Court in the first place (Gray, 1997, p. 50). Ultimately, the concept of sovereignty is a double-edged sword in understanding ongoing Indigenous and non-Indigenous relations in Australia. On one hand, Indigenous sovereignty, as a lived reality under Indigenous law, is a powerful tool for asserting self-determination and autonomy (Moreton-Robinson, 2006). On the other hand, when framed as a political claim against the settler state, it becomes a limited concept, as the settler state cannot impartially adjudicate matters that challenge its own legitimacy (Moreton-Robinson, 2006).

In summary, sovereignty is simultaneously both a useful and limiting concept in understanding ongoing Indigenous and non-Indigenous relations in Australia. This is for three key reasons. First, sovereignty, by its nature, lacks an enduring ontological grounding and is continuously (re)produced through its performative enactment (Weber, 1998). This makes it an inherently double-edged concept, with its effects depending on the sovereignty discourse that prevails at any given time (Weber, 1998). Second, through a performative reading of the 2023 Voice referendum, it becomes evident that Australian sovereignty acquires its legitimacy only through the repeated citation of dominant discourses and norms (Butler, 1993, 2009; Mathieu, 2021). The reappropriation of sovereignty by Australian Indigenous peoples, therefore, has strategic benefits, as it can serve as a subversive parody that challenges and redefines that sovereignty (Butler, 1993, 2009). This aligns with the Butlerian understanding that if sovereignty is constituted through discourse, then any disruption to these discourses of sovereignty leads to sovereignty, as something recognised, coherent, and hegemonic, being itself disrupted (Weber, 1998, p. 89). Third, while the concept of sovereignty enables Indigenous peoples to claim equal standing with the Australian settler state, it can also marginalise alternative forms of governance by deeming them illegitimate (Moreton-Robinson, 2006). Taken together, these examples suggest that the concept of sovereignty is neither entirely useful nor ineffective, as it is inherently a double-edged sword (Weber, 1998). Ultimately, unless scholars move beyond conceptualising sovereignty as a definitional absolute, and instead embrace it as a malleable and performative social construction, genuine progress in understanding ongoing Indigenous and non-Indigenous relations in Australia will remain an elusive goal (Weber, 1998).

Hayden Young's essay 'Whose Sovereignty Is it Anyway? Understanding Sovereignty as a Performative Concept' was awarded 1st place in the Academic category of the 2025 Melbourne Arts Student Society Writing Competition.

Image Source: The Sydney Morning Herald Archive