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.