The Indigenous Peoples’ Journal of Law, Culture & Resistance

Built on a colonial discourse of justifiable Christian conquest, United States federal Indian law and policies have specifically targeted American Indian religious practices as a way to assimilate American Indians into the dominant colonizing culture and to undermine tribal sovereignty. Federal policies throughout colonization and into the present have drastically swung between denying American Indian religious practice and allowing for it under federal control, creating a confusing string of conflicting precedent. Although the worst of these practices has largely been abandoned, the paternalism of the United States government continues today with the creation and oversight of a permit system, which regulates the use and possession of bald and golden eagle feathers and parts (hereafter “eagles”). This article explores the history of federal policies aimed at American Indian religious practices to demonstrate the ways in which American Indian religious freedom law has been built on precedent and changing policies. I examine the function and regulations of the eagle permit process to situate it within recent challenges to its constitutionality using the First Amendment and the Religious Freedom Restoration Act (RFRA). In doing so, I outline the benefits and pitfalls of pursuing such challenges in the United States Supreme Court. Looking at the success of tribe-to-administrative agency negotiations, this article highlights the 2018 petition to Fish and Wildlife Services as an alternative method to pursuing American Indian religious freedom by accessing eagle parts.