Bad Deal

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

"Now this, this is a real important piece. Only 12 of them in existence," Tim Kornwolf says with a note of pride. Kornwolf, an art dealer, is pointing to an Ojibwe buffalo robe, which dates from the 1880s. The robe is laid out in an antique glass-covered display cabinet in the basement gallery of Kornwolf's Stillwater home, an old Victorian mansion. The gallery is filled to the brim with 19th-century Native American artifacts. Most are pricey.

A Sioux war club, also under glass, is going for $3,200. A beaded Crow shirt is priced at a cool $15,000. There is no price tag on the buffalo robe. "I'd have to negotiate that with the buyer," Kornwolf says. Now 55 years old, he has spent most of his life buying, selling, and trading Indian artifacts. He is proud of his collection and happy to discuss the pleasures of his work. But when the subject turns to the federal government, Kornwolf's demeanor shifts.

"Damn right, I've got my dander up," he says with a scowl. "They came in here, and they basically strip-searched my house, and it's been a nightmare ever since."

War over a bonnet: Tim Kornwolf pleaded guilty to violating laws designed to protect bald eagles
Teddy Maki
War over a bonnet: Tim Kornwolf pleaded guilty to violating laws designed to protect bald eagles

Kornwolf's troubles began on January 19, 2000. He was in the gallery, working on his computer, when he heard a sudden commotion upstairs. At first Kornwolf figured it was just the UPS man with a delivery. A few moments later, he was surprised to see three men--armed and wearing bulletproof vests--burst through his door. "They were yelling, 'Don't move! Don't move!' It was just like you see on the cop shows on TV," Kornwolf recalls.

The officers who raided Kornwolf's home weren't FBI agents looking for counterfeit money, or DEA agents hunting for drugs. They were, rather, special agents with the U.S. Fish and Wildlife Service, and they were on the trail of a very different sort of contraband: illicit bird feathers.

As he examined the search warrant, a shaken Kornwolf recognized the name of a recent customer--one Ivar Husby. Husby had come to Kornwolf's gallery a few months earlier, and bought an antique Dakota dance shield for $7,000. A few weeks later, Husby made a $5,000 deposit for the purchase of a Dakota headdress, priced at $15,000. Both items were adorned with feathers from a protected golden eagle. According to Kornwolf, he had not planned to sell either piece, which, he says, he inherited some 40 years ago from his great uncle, a former cowboy who traveled in Buffalo Bill's Wild West Show around the turn of the century. But, Kornwolf says, Husby's offers were too tempting to resist. As it turned out, Husby was no collector. He was an agent of the Norwegian Ministry of Justice, working undercover for the Fish and Wildlife Service.

Kornwolf realized he was in trouble, because the sale of eagle parts is illegal under federal law, punishable by a fine of up to $10,000 and two years in prison. On October 31, the day he was scheduled to go on trial in U.S. District Court in Minneapolis, Kornwolf pleaded guilty to two counts of violating the U.S. Bald and Golden Eagle Protection Act and two counts of violating the U.S. Migratory Bird Treaty Act. But the pleas were entered with a condition; Kornwolf reserved his right to mount a constitutional challenge to his conviction--a fight he now plans to take to the Eighth Circuit Court of Appeals and, if necessary, the U.S. Supreme Court.

"My lawyers thought I had a pretty good chance to fight the charges based on entrapment. But if I won there, that would just be me. It wouldn't do anything about the law," Kornwolf says. "That's why I put my head on the chopping block. It's a bad law, and it should be overturned."

Rich Edwards, a law professor at the University of Toledo and a longtime collector of Native American art, agrees. In Edwards's view, the government's prosecution of Kornwolf violated the so-called just-compensation clause of the Fifth Amendment. Because Kornwolf came into possession of the items before 1962, when the Bald and Golden Eagle Protection Act was passed, Edwards argues, he ought to be allowed to sell them, or be compensated by the government.

"When he inherited these artifacts, they were worth money, probably substantial amounts of money, and he could have sold them," says Edwards. "But when Congress passed the eagle protection act, it destroyed their economic value. More importantly, the government's line of reasoning is out of line. They are taking a family heirloom, maybe even throwing Tim in jail, because that will theoretically protect eagles from being killed? Well, I think that's a highly doubtful connection."

Edwards, who is acting as a consultant and expert witness on Kornwolf's behalf, contends that the government's strict sale and possession laws produce prosecutorial excesses on a regular basis. In one well-publicized 1994 case, he says, an Illinois woman named Peg Barton was fined $1,200 after presenting Hillary Clinton with a hand-fashioned dream catcher that contained an eagle feather. Barton had found the feather, which was naturally shed, on the floor of an eagle cage, but legally it made no difference how she acquired the plumage.

In other instances, Edwards charges, the mere fear of federal prosecution has led to some perverse outcomes. A few years back, he says, he received a call from an attorney representing someone who had inherited a jacket that once belonged to Rain-In-The-Face, the legendary Sioux warrior reputed to have killed Custer. How, the attorney asked, could his client legally sell the jacket, which was adorned with an eagle feather and talon? "The heirs didn't want to give it to a museum. They wanted money, so they cut off the talon and eagle feathers and sold it for $14,000," Edwards says. "You tell me: how many eagles were saved by that action?"

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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