Bad Deal

Tim Kornwolf ran afoul of the feds for selling Indian artifacts. Now he wants to take his case to the Supreme Court.

Assistant U.S. Attorney Clifford Wardlaw, who prosecuted the case against Kornwolf, says such complaints are irrelevant. "The government's position is this: If there is a market for eagle feathers, then people are going to supply that market, and some of those people will kill eagles," Wardlaw says. "Under the law, there isn't a gray area where you can argue this is an old feather and this is a new feather, or vice versa. It's a clear, bright line. Mr. Kornwolf understood that, and acknowledged that he understood that. Mr. Kornwolf's personal opinion about the law is not a valid defense. He knew he violated the law."

As to Kornwolf's claim that he deserves compensation, Wardlaw says that is already a settled matter. He points to Andrus vs. Allard, a 1979 Supreme Court ruling that the government's prohibition against selling eagle feathers does not rob the owners of feathers of compensation. Indeed, U.S. District Court Judge David Doty cited the precedent when rejecting Kornwolf's pretrial motion to dismiss the charges against him.

But Robert Miller, the Minneapolis attorney representing Kornwolf, says the makeup of the U.S. Supreme Court has significantly changed in recent years. The more conservative justices who now dominate the court, he says, are more likely to sympathize with Kornwolf's argument that his property rights were violated.

Bring it on, responds Assistant U.S. Attorney Wardlaw. "He was prosecuted for commercialization of eagle feathers, and all we have to demonstrate is that he sold or attempted to sell eagle feathers," Wardlaw says. "We wanted it to be as clear and clean-cut a case as possible."

Fish and Wildlife spokeswoman Sandra Cleva says the agency investigated some 177 cases last year alone under the eagle protection act. While hard statistics are not available, Cleva says, most of the cases involved the sale or attempted sale of feathers, not mere possession. But, she adds, possession of eagle feathers is illegal, save for two narrowly excepted groups: enrolled members of Indian tribes--who must obtain feathers via the federal National Eagle Repository in Colorado--and non-Indians who can establish ownership of feathers predating 1962. Cleva says such broad prohibitions are necessary to protect eagles from black-market poachers. "Allowing possession encourages people to collect feathers. And if people can collect, then they think, 'Maybe I can make something with them and then I can sell it,'" Cleva says. "That creates a black market."

"This doesn't have jack shit to do with the protection or salvation of the eagle," Kornwolf counters. His customers, he argues, have no interest in acquiring bogus artifacts made from the parts of freshly killed birds--and he doubts any serious collector would buy one. "That would be like making a Ted Williams baseball card on a color copier and trying to sell it to a baseball card collector. He could look at it from ten feet away and see that it's not the real thing."

Meanwhile, prosecutor Wardlaw says, the government has agreed to hold onto Kornwolf's headdress and dance shield until all the legal appeals have been exhausted. After that, he says, Fish and Wildlife will probably attempt to return the items to the tribes where they were created. "If we're not able to locate a lawful owner, we'll probably just donate them to a museum," Wardlaw says. "They are very beautiful items."

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