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WEDNESDAY, JUNE 12, 2002

In an interesting twist, a conservative legal group which has fought protection of sacred sites and Native voting rights has submitted a Supreme Court brief championing Indian law victories.

Siding with a non-Indian man accused of violating federal protections for bald and golden eagles, the Mountain States Legal Foundation of Colorado wants the Court to resolve an "obliterated" precedent. An amicus brief filed April 26 invokes two cases decided in favor of individual Indian allottees.

According to the brief, the protections extended to Indian landowners in the cases should apply to a Minnesota man who was convicted for selling historic Indian artifacts containing eagle feathers. Kornwolf sold a Sioux dance shield and a headdress to an undercover agent working for the Department of Interior.

Mountain States argues the sale was legal because the items date prior to the enactment of the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. "Under the Feather acts, even though Kornwolf still has the right to posses the artifacts, he is prohibited from selling the artifacts, rendering them economically worthless," the brief states.

The 8th Circuit Court of Appeals in January disagreed with such reasoning, relying on the Supreme Court's holding in the 1979 Andrus v. Allard case. A three-judge panel said Kornwolf's constitutional rights were not violated.

But subsequent decisions have chipped away at the Andrus ruling, the brief argues. Cited are Hodel v. Irving, a 1987 case, and Youpee v. Babbitt, which came a decade later.

In both instances, the Supreme Court ruled that provisions in federal law designed to eliminate fractionated land holdings were unconstitutional. Indian allottees, the Court said, were entitled to compensation for the "taking" of their land.

"This Court's decision in Irving and Youpee demonstrate that this Court has all but abandoned its 1979 holding," the brief states.

Mountain States' involvement in the dispute is not a surprise. The group is part of the growing property rights movement, which advocates for principles embodied in the 5th Amendment, including the clause on takings.

But that advocacy has pitted the group against tribes and Native Americans who want access to federal lands for ceremonial purposes. In a recent case, Mountain States failed to stop a federal policy aimed at discouraging visitors from walking under Rainbow Bridge, a site in Utah considered sacred to a number of tribes.

The group also helped a Montana county defend itself from a Native voting rights case but also lost the challenge. As the result of a lawsuit the Department of Justice filed on behalf of members of the Fort Belknap Tribes, a new county map was created to increase Native representation.

Kornwolf is represented by Robert Haar, an attorney based in St. Louis, Missouri. His petition for writ of certiorari was filed April 11 with a response from the government due by June 17.

Relevant Documents:
Supreme Court Docket Sheet: No. 01-1534 | Kornwolf v. U.S

Relevant Links:
Mountain States Legal Foundation - http://www.mountainstateslegal.org

Related Stories:
Supreme Court rejects property-rights claim (4/24)
Supreme Court declines tribal challenge (3/19)
Sides prepare to appeal Cayuga claim (3/12)
Appeals court upholds eagle protection laws (1/17)
Supreme Court hears land rights case (1/8)
Court to rehear eagle protection cases (8/9) )