American Indian Culture and Research Journal

Felix Cohen once wrote that Native American legal history manifests the greatest problem in Anglo American jurisprudence. This paper supports that observation through an examination of the Native American tribal quest for religious freedom. The basic theme of the paper is that traditional Native American tribal peoples and mainstream Anglo Americans embody very different world views, and these differences create major problems for Native American tribes who seek to practice their traditional religions. The first part of this study will compare and contrast traditional Native American tribal views of land and religion with those of Anglo Americans. This picture will be painted with a very broad brush that uncovers the essential differences between the two societies. Next the paper will examine the ideology of civilization which is part and parcel of the Anglo-American world view and system of jurisprudence. To do this, the study will concentrate on Adam Smith’s Wealth of Nations and the Supreme Court’s decision in Johnson v. M’Intosh. Then the paper overviews some of the foundations of American Indian law, the branch of jurisprudence that deals specifically with Native Americans. Here the study examines cases, treaties, and treaty substitutes.

Lying about seventy miles north of Santa Fe, New Mexico, and just north of the non-Indian Town of Taos, is the Indian pueblo, also called Taos. A National Historic Landmark since 1975, Taos has recently been nominated as a World Heritage Site. First seen by white men during the Spanish conquistador Coronado’s expedition of 1540-42, the pueblo currently has a population of about 2,000 Indians. It is a popular tourist attraction, automobiles sometimes lining up for more than an hour, waiting their turn to drive in and park in the village square. An attractive white-walled Catholic church, St. Geronimo, sits at the main entrance facing the square. Through the center of the village runs the Rio Pueblo de Taos, whose source is the Sacred Blue Lake some 20 miles to the north. After bisecting Taos, this stream runs into the much larger Rio Grande. At an elevation of 11,800 feet, Blue Lake is “symbolically considered the source of all Taos life and the retreat of souls after death.” It is also the focal point for the annual pilgrimage of the Taos, held in late August. According to Tito Naranjo, a Santa Clara Pueblo married to a Taos woman who has participated in Taos religious life: “The walk to Blue Lake by ’piathliaas’ is to reaffirm the belief in ‘thlatsinaas,’ which is similar to other moity oriented pueblos who re-enact the origin myths. The Pueblo, as a whole, participates in that process in a dual pilgrimage, one by the boys and ’teach- ers’ and the other by the Pueblo resident members at large.”

In the winter of 1869, after several hard days of travel, a cold and weary delegation of Citizen Band Potawatomis and government officials arrived in the heart of the Indian Territory. There they selected a thirty-mile-square tract of land to serve as the future site of the Citizen Band reservation. Having endured the long and laborious journey from Kansas, all were relieved that their venture met with success. A similar delegation sent the year before had not been so fortunate; after facing impassible wagon roads, ”deep mud and overflowing streams,” it had been forced to turn back. Within a year the Secretary of the Interior approved the Potawatomis’ new claim, and tribal members eagerly prepared for removal from Kansas. Unfortunately, their high spirits were soon dampened by tempestuous circumstances. The Citizen Band’s unique, yet vulnerable, legal status not only exposed them to charges that they had no right to own or inhabit any reservation, but threatened to strip them of their tribal identity as well. They also found themselves embroiled in a bitter feud with the Absentee Shawnees, a group of Indians who had strong prior claims to the lands the Potawatomis had selected. To further complicate matters, the federal government failed to establish a dividing line between the two tribes and promoted conflicting allotment policies on the reservation. In response to these challenges Citizen Band members developed strategies which reflected their atypically “progressive” characteristics, and employed their highly effective, though much maligned, Business Committee, to great advantage.