Peter d'Errico: The answer is indigenous sovereignty
"The core of federal Indian law is rooted in a legal doctrine that is not acceptable in American law, namely, religious supremacy – the so-called right of Christian Discovery. The Johnson v. M’Intosh decision 186 years ago (1823) violated the separation of church and state and set federal Indian law on a path even the Supreme Court found problematic.

The court referred to its Christian Discovery decision as a “pompous claim” and an “extravagant pretension,” and added it “may be opposed to natural right, and to the usages of civilized nations” and only “perhaps. … supported by reason.” But the court said the doctrine was designed to protect colonizer property from “fierce savages” who were “brave and high spirited” in defense of their independence.

This is a bad pedigree for a legal principle in a system based on the rule of law. The rule of law says government power must be “subordinated to impartial and well-defined principles of law” and “exercised according to mutually understood rules and procedures that are applicable to all members of a society.” (Oxford Dictionary and Reference)

When we look at federal Indian law with a critical eye, we see it is actually not part of a rule of law system, but rather a colonial imposition and a relic of religious discrimination. This is evident from the court decision.

When we look with a commitment to justice, we cannot avoid the conclusion that the Doctrine of Christian Discovery must be expunged from American law. The question is what doctrine might take its place? The short answer is indigenous sovereignty."

Get the Story:
Peter d’Errico: Sovereignty paths not taken (Indian Country Today 5/290