Indian Law Clinic Awarded Attorneys' Fees for Successful Eagle Feather Recovery Case

November 1, 2004

Chiricahua Apache Joselius Saenz not only received his ceremonial eagle feathers back, but was awarded $48,818 for legal fees incurred in his eight-year odyssey to recover the feathers which were seized in 1996 by the U.S. Department of the Interior Fish and Wildlife Service. The federal agency took the religious items with feather adornment, including a shield, staff, quiver, fan and dream-catcher claiming that Saenz wasn't a member of a federally recognized tribe and needed a permit under the Bald and Golden Eagle Protection Act. Chiricahua Apaches, involved in border skirmishes with the U.S. Cavalry in the 1880's, fled south to a mountain stronghold when other Apache bands surrendered. The groups that surrendered were relocated and eventually were recognized by the federal government. Saenz's band was not. Saenz, represented by Colorado Law's American Indian Law Clinic and Peter Schoenburg, Esq. of Albuquerque, sued the government under the Religious Freedom Restoration Act. Counsel for Saenz argued that the government's regulation limiting permits for eagle feathers only to members of federally recognized tribes impermissibly infringed on his right to religious exercise and was not the least restrictive means of advancing the government's interests in preserving eagle populations and protecting Native American culture. "Imposition of the government's single and strictly legal definition of "Indian tribe" for all purposes -- historical, social, ethnic, religious, political and jurisdictional -- conflicts with the reality of human experience," wrote the late U.S. District Court Judge Edwin L. Mechem when he ruled in Saenz's favor in 2000. The government immediately appealed to a panel of the 10th Circuit Court of Appeals. Saenz won again, and the government then appealed to the full 10th Circuit. After the third loss by the government, Saenz sought recovery of legal fees under the Equal Access to Justice Act. Finding that the government's position was not "substantially justified," the court awarded New Mexico counsel $27,478.38 and the Indian Law Clinic $8,175.00. A subsequent appeal of the award was dismissed by the 10th Circuit on July 23, 2004. Two other cases, involving non-Indian sincere practitioners of Native American religion who also possessed ceremonial eagle feathers without a permit, Sam Wilgus of Colorado Springs, CO, and Raymond Hardman of Neola, UT, were remanded by the 10th Circuit to the District Court and are still awaiting ruling.