War on feathers
Fruitless drug raid becomes federal holy war

by Robert Struckman

Police stormed the home of Joselius Saenz, hoping to find drugs in the American Indian's house. They didn't. Instead, they found a bald eagle feathers Saenz used in prayer. They took them, saying Saenz had no right to posses the feathers of a protected bird.

Today, six years after the raid, the government is battling to deprive Saenz of his feathers permanently, in what could become a landmark freedom of religion case for the United States Supreme Court to decide.

At issue is the fact that only American Indians, by federal law, are allowed to possess feathers and other parts of bald eagles. Saenz says he's an Indian; the federal government says he's not.

It's not a case involving some lily white suburbanite who wants to fish without a license, claiming a drop of Indian ancestry imparted by a great-great grandfather who was one-eighth Sioux.

Saenz was born and raised an Indian. With brown skin, black hair and two long braids, Saenz fits all the visual stereotypes applied to American Indians. He's a member of the Chiricahua Apache tribe, which he was born into.

None of that impresses federal prosecutors. He's not an Indian, they say, because the Chiricahua Apache tribe is not recognized by the Bureau of Indian Affairs. That detail, under regulations of the Department of Fish and Wildlife, means that Saenz is an illegitimate Indian in the eyes of the law with no special right to worship with feathers.

In mid-January this year, Saenz sat in a courtroom with the Tenth Circuit Federal Court of Appeals in Denver. The panel of 11 judges had listened to arguments, some for and some against Saenz's right to keep eagle feathers.

During the hearing, one of the judges asked if the Chiricahua Apache had applied to the Bureau of Indian Affairs for federal recognition. It seemed as if the judge were asking if Saenz were almost a federally recognized Indian.

The Chiricahua Apache have not been recognized as a tribe by the federal government for more than 100 years. The tribe has an application in, but the non-political Saenz doesn't bother to track its progress through the arcane and Byzantine channels of the Bureau of Indian Affairs' Branch of Acknowledgment and Research.

"I just want to practice my religion," Saenz says, when asked about the status of his tribe.

During the January appeal he sat quietly in a seat in front of several University of Colorado law students. He didn't need to make any noise. He already has, so to speak, before judges in New Mexico and three of the members of the federal appeals panel in Denver last August. He has argued that the government has unduly burdened his religious freedom by denying him the right to keep his eagle feathers. Broadly speaking, the judges who have heard him have agreed with him.

But the Department of Interior won't give up, and its lawyers have said they are willing to fight him all the way to the U.S. Supreme Court.

The Chiricahua Apache had treaties and a reservation until Geronimo led the starving and desperate band into war with the United States in 1886. Some of the fighters, including Geronimo, eventually surrendered. Others, however, fled to mountain hideouts in the Sierra Madre across the Mexican border. Most of those who gave themselves up landed in prison in Florida. After decades of incarceration, they were freed, recognized as Indians and resettled in Oklahoma and New Mexico.

But the ones who never surrendered found themselves excluded from Indian officialdom. That was the case with Saenz's elders. After a generation south of the border, Saenz's grandfather returned to New Mexico in the 1930s as something less than an Indian in the eyes of the United States government.

"It is totally a government classification. I have always been Apache," says Saenz, who danced regularly in powwows across the West until his eagle feathers were seized during the 1996 raid of his home.

The officers standing in his living room saw a bow and arrow with eagle feathers on the wall. The officers asked if Saenz had a permit. He didn't. Before long, law officers had taken everything. A drum with a feather attached. A wolf hide headpiece with another couple feathers was also taken. A judge later forced the Department of Fish and Wildlife to give his things back, pending the outcome of the case.

In the moments when the agents seized his traditional dancing outfit, his bustle and headdress, Saenz was defiant. He was also defeated.

"At first I thought, 'Go ahead and take them. I'll just get more,'" Saenz said. The whole sorry history of his tribe's story with the federal government played through his head. Always caught, always in trouble, and always denied because of technicalities.

Just as Saenz was succumbing to his plight, he snapped. No, he said. This was his religion, his life, and all that really mattered to him. It wouldn't be callously taken by federal agents who were using a technicality to deny him his most cherished possessions. He thought of his father, walking with him on the old trails that Geronimo had used to melt into the mesas before the Army. Above him and his father eagles had circled.

It's hard to explain the significance of eagles to non-Indians. Saenz likened the importance of eagle feathers to the relationship Christians have with the cross.

In these harrowing times for Indians, however, it might be more accurate to say that there is no equivalent in Christianity to the feather. Nobody needs a government permit to own a cross in America. A cross cannot be seized wantonly from a wall in a person's home by law enforcement officers.

Saenz, who is self-employed leading guided trips in the mountains of New Mexico near the town of Warm Springs, decided to fight for what was his. In 1996 without the resources to hire his own lawyer, he approached the Indian Law Clinic at the University of Colorado Law School in Boulder. Student attorneys took on his case and began to sort through the legal details.

This is not just about Saenz and his dozen religious items. This case could potentially set an important precedent for the tens of thousands of members of the more than 200 historical tribes currently applying for recognition from the federal government. The Department of Interior is desperate not to open that can of worms, as it could make enforcement of feather regulations and the like nearly impossible.

After Colorado students took the case, Albuquerque lawyer Peter Shoenburg joined up as lead attorney for Saenz. About a year ago, in a strongly worded order, U. S. District Judge Edwin Mechem ordered the Department of Fish and Wildlife to return the seized property. Federal agents obeyed the order, but immediately appealed.

Sarah Krakoff, who was the director of the Indian Law Clinic when Saenz showed up, said the efforts of the government to restrict the number of Indians who have legal claims as Indians is itself an important issue.

"We took the case because it had to do with federal Indian law and because we thought the government's position was wrong," says Krakoff.

John LaValle, a law professor at the University of South Dakota and a Santee Sioux, said eagles simply hold tremendous symbolism to the members of many tribes, although certainly not all. There are more than 500 distinct and different recognized tribes within the United States. The importance of the symbolism of the bird has nothing to do with federal recognition and everything to do with a tribe's history and traditions.

Those traditions endured sustained attack every bit as much as Indians themselves. In the 1890s Indians were banned from practicing their religions. The text of those bans do not distinguish between recognized and unrecognized Indians. The BIA outlawed the Sun Dance and other ceremonies. The ban remained until 1934. In one of the most infamous incidents, U.S. Army soldiers gunned down Ghost Dance worshippers at Wounded Knee in South Dakota, killing about 300 men, women and children.

Slowly, in the decades since the worship bans were lifted, Natives have successfully fought to regain some of the rights to practice their indigenous religions. The war, though, is far from over, LaValle said. Even assuming that the government's efforts to protect the religious freedom of Indians is sincere, it is a difficult job through uncharted territory.

"These laws are almost experimental, whether the U.S. can succeed in protecting these community religions," LaValle said. For one thing, he said, the religions are tied to specific places, specific events. It is a very difficult situation for a bureaucracy to deal with.

As with all minorities, long accustomed to the tyranny of the majority, many Natives view with caution any attempt to challenge the system.

At the offices of the U.S. Department of Fish and Wildlife in Lakewood, Colo., Kelly Gonzales processes the applications of those trying to get eagle feathers. Actually, the request is usually for a whole bird. The leg bones will be made into whistles. The claws are mounted on staffs. In all, the heads, wings, tails, and even the downy white feathers will be used for various ceremonial items.

The applications in Denver come from eight surrounding states. Gonzales recently said she had 800 pending requests. There is no charge for the birds. The wait for applicants anywhere in the country is the same, about three and a half years. Almost all of the applicants supply the required tribal identification number from the BIA.

"Those who haven't I can count on one hand," Gonzales said. "When people call in, I tell them that they have to be part of a recognized tribe with an enrollment number. They need proof of enrollment, the name of the tribe, and to be signed off by the BIA."

The eagles themselves are processed at the Federal Eagle Repository at the sprawling complex of buildings at the Rocky Mountain Arsenal in northeast Denver. The Eagle Repository itself is a warehouse. The location is a loosely kept secret, because the building also holds a gruesome collection of illegal items seized by various law enforcement agencies. On the walls hang the green shells of rare sea turtles and on the floor stand stools made from the feet of elephants. There is an ashtray made from the palm of an ape or a gorilla. It looks almost like a human hand. One area has hundreds of cowboy boots, each made from the skins of endangered animals.

The eagle area takes up about one third of the structure. On one side is a bank of freezers and coolers. At a large brown table over a smooth concrete floor Dennis Wiist inspects the carcasses of about a dozen pungent golden and bald eagles. He wears a white jump suit over his street clothes. The job can sometimes be pretty messy. Some of the birds had been shot, some poisoned. Almost all were found dead by the side of a road by a game warden. The birds, in varying stages of decay, are bagged, frozen and delivered here. This is the only federal clearing house for eagles and one of only a few legal methods for Native Americans to obtain eagle feathers and parts.

The process of cleaning and inspecting the birds is oddly intimate. Wiist is white and knows little about the uses of the birds, but he has learned to judge a bird's value as a religious item.

In front of me, Wiist splays the wing feathers of a dead bald eagle, its mouth agape. The third feather on the raptor's left upper wing is crushed, nearby feathers are damaged.

"He must have run into something," Wiist explains. "Probably not what killed him."

Wiist's gloved fingers move to the bird's signature tail feathers, dazzling white and long with a smidgen of grime. The tail feathers look good. Wiist gently rolls the eagle over and massages its neck and the base of its head. The neck is unbroken. Then he brought his face close to the raptor's claws. The palm of the left claw appeared to be a bit swollen but not too bad.

Soon this bald eagle-and a few extra feathers to replace the broken ones-will be shipped to a Native applicant who completed the paperwork about three and a half years ago.

While Wiist works, a pickup with South Dakota plates pulls into the gravel lot outside. A warden climbs from the cab and retrieves several black plastic bags wrapped with masking tape from the pickup's bed. Seven more eagles bound for Indian country.

The government's feather war is not a case about religious freedom, insists a Justice Department lawyer recently. The United States has two competing obligations, the lawyer said. One is to protect eagles. The other is to honor the federal government's trust relationship with federal tribes. Part of that relationship is to allow members of those federal tribes to use eagle feathers.

Government lawyers say the process of getting eagles to federal Indians is already slow and tedious. If required to provide eagles to Indians in unrecognized tribes, they say, the wait list could grow to an unmanageable size.

But Judge Mechem disagreed with the government's arguments in a blistering ruling handed down this time last year. He said the government's "draconian" use of recognition to determine who could worship with eagle feathers conflicted with reality. He noted that the wordings of the laws-the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act-made no mention of federal recognition. Instead, the laws simply say, "Indian tribes."

In fact, the Department of Interior's own internal regulations did not clearly exclude non-federal Indians until after Saenz' case had entered the judicial system.

Mechem wrote that the government's use of federal recognition in issuing permits to own eagle feathers was little more than a bureaucratic short-cut.

"In the end," Mechem wrote, "It appears the present system was designed to minimize the work Congress has handed the agency... Administrative expediency, however, does not constitute a compelling government interest."

With that, Mechem ordered the Department of Fish and Wildlife to return Saenz' religious items.

If Saenz loses on appeal, he'll have the feathers and other items taken again. If he wins, officials from the Justice Department say their agenda is so important that they'll gladly take it all the way to the Supreme Court of the United States. All because a search for drugs turned up feathers.

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