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Appeals court upholds eagle protection laws
THURSDAY, JANUARY 17, 2002

Federal laws protecting bald and golden eagles do not violate the U.S. Constitution, an appeals court ruled on Wednesday.

Affirming a federal judge's holding, the 8th Circuit Court of Appeals refused to overturn the criminal conviction of a Minnesota man who sold Indian artifacts that contained eagle feathers and eagle parts. Citing recent case law, Timothy P. Kornwolf had asserted his constitutional rights were being infringed by the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act.

But a three-judge panel of the appeals court rejected Kornwolf's reasoning. In a unanimous ruling, the court said he failed to prove that Supreme Court decisions protected his individual private property rights.

The case centers around an undercover investigation in which Kornwolf, 54, sold a Sioux dance shield and a headdress to a Norwegian law enforcement agent working for the U.S. Fish and Wildlife Service, an agency of the Department of Interior. Ivar Husby, who has helped net other artifacts in stings throughout the nation, purchased the artifacts for $12,000.

Kornwolf admitted to the sale when he pleaded guilty to the crime. But he said it wasn't illegal because the items in question predated the establishment of the eagle laws.

The items, Kornwolf said, had belonged to his great-uncle, who obtained them while working for Buffalo Bill's Wild West Show in 1904. The laws in question weren't established later in century, so he said the prohibition against sale didn't apply to him.

The Supreme Court in 1979, however, did say the laws extended to all items with eagle feathers or parts. Kornwolf's attempt to temper this decision failed to convince the 8th Circuit judges yesterday.

The status and applicability of the protection laws has become an unresolved legal question in the past few years. The 10th Circuit is currently reconsidering three cases with nationwide implications.

One would resolve whether members of non-federally recognized tribes can possess eagle feathers. U.S. Fish and Wildlife seized property of Joselius Saenz, a member of Chiricahua Apache Tribe, which was terminated in the late 1800s.

Two others involve whether non-Indians can be prohibited from owning eagle feathers and parts in light of evidence the bald and golden eagle populations are rebounding. The three cases were just heard on Tuesday jointly before a full panel of the appeals court.

"There are only 40 pairs in the Southwest region, so I urge you not to overestimate its alleged rebound," Department of Justice attorney Kathryn Kovacs told the 11 judges.

A decision on the cases will be released later.

Property-rights groups and artifacts traders had rallied behind Kornwolf, whose sentence of three years' probation and six months of electronic home monitoring has been on hold pending review. A request for him to return the $12,000 has not been resolved.

Kornwolf's St.Louis, Missouri-based attorney Robert Haar said yesterday he was not surprised by the appeals decision. "No final decision has been made but I anticipate we will file a petition for writ of certiorari [with the Supreme Court] to review the case," he said.

"We think that if the Supreme Court applies its current case law to the facts of the Kornwolf case," Haar added, "this conviction is unconstitutional."

The U.S. Attorney's office in Minnesota handled the case. A spokesperson yesterday said the attorney involved was out of town.

Mountain States Legal Foundation, a group which has fought the government on sacred site and Indian religious freedom cases, submitted a brief on behalf of Kornwolf. Secretary of Interior Gale Norton was a former attorney for the Colorado-based organization.

Get Case Material US v. KORNWOLF, No. 01-2394:
8th Circuit Decision | Kornwolf Brief | U.S. Brief | Mountain States Brief

Related Cases:
SAENZ v. DEP'T OF INTERIOR, No 00-2166 (10th Cir. August 08, 2001)
US v. WILGUS, No 00-4015 (10th Cir. August 08, 2001)
US v. HARDMAN, No 99-4210 (10th Cir. August 08, 2001)
Andrus v. Allard 441 US 51 (Sup Ct 1979)

Relevant Links:
Eagle Feathers, BIA - http://www.doi.gov/bia/information/eaglepermit.htm
Buffalo Bill's Wild West Show - xroads.virginia.edu/~HYPER/HNS/BUFFALOBILL/home.html
The Bald Eagle and Golden Eagle Protection Act - laws.fws.gov/lawsdigest/baldegl.html
Migratory Bird Treaty Act - www.usbr.gov/laws/mbta.html