NAFPS Forum
General => Research Needed => Topic started by: earthw7 on March 18, 2008, 02:12:35 pm
-
Fla. man gets $5K fine, probation for trading bald eagle feathers
Posted on Tue, Mar. 18, 2008Digg del.icio.us AIM
The Associated Press
NASHVILLE, Tenn. -- Federal prosecutors say a Florida man who illegally possessed and traded feathers of American bald and golden eagles has been sentenced to a $5,000 fine and five years of probation.
Authorities announced the sentencing Monday of 51-year-old Ed Winddancer of Port Charlotte, Fla.
The U.S. Fish and Wildlife Service says Winddancer was arrested in Tennessee in July 2005 after he traded feathers from eagles and other protected migratory birds to an undercover agent in exchange for feathers and parts of other protected wildlife species.
Investigators say Winddancer performed Native American dances and music for civic groups, schools and summer camps. He also used the feathers to decorate his regalia.
The possession of American bald and golden eagle feathers without a permit is prohibited by the federal Bald and Golden Eagle Protection Act.
Nonrecognized man sentenced over eagle feathers
Tuesday, March 18, 2008
Filed Under: Environment
A Florida man who is a member of non-recognized tribe was sentenced to five years of probation and fined $5,000 for illegally possessing and trading eagle feathers.
Ed Winddancer, 51, says he is a member of the Nanticoke Tribe. He was arrested in Tennessee in 2005 for trading bald and golden eagle feathers with an undercover agent from the U.S. Fish and Wildlife Service.
Winddancer sought to dismiss the charges, saying his rights under the Religious Freedom Restoration Act were violated by federal laws that protect eagles. A member of a non-recognized tribe from New Mexico won a case on similar grounds.
But a federal judge in Tennessee ruled in June 2006 that Winddancer failed to apply for a permit so he couldn't challenge the Migratory Bird Treaty Act. The judge also said the government, under the Bald and Golden Eagle Protection Act, has a compelling interest to preserve eagles and the rights of federally recognized tribes.
-
I appreciate comments.
Online:
http://www.scam.com/showthread.php?t=36652
Article on Eagle Feathers c2008
http://64.38.12.138/News/2008/007693.asp
http://www.nativewayproductions.com/Ed%20Winddancer.htm
Face Book
http://www.facebook.com/profile.php?id=1124432883
Time Friday, November 26 · 6:30pm - 8:00pm
Location The Power of One
238 W. Tampa Ave. Venice Centre Mall #258
Venice, FL
Created By
Ed Winddancer
More Info Ed Winddancer is an International Native American performing artist , respected educator, and Native American activist. A gifted player of the Native American flute, and Traditional Dancer, Ed has performed for audiences throughout the United States and Europe, and has dedicated his life to preserving his culture through the art of music, dance and education. Call for reservations...seating is limited!
-
Pielert/Winddancer has ticked off quite a few people with his claims.
----------
http://www.fws.gov/southeast/news/2008/images/EdWinndancerTradingAmericanBaldEagleFeathers.pdf
March 17, 2008
FOR IMMEDIATE RELEASE
CONTACT: Ed Yarbrough
United States Attorney
Byron M. Jones
Assistant U.S. Attorney
ED WINDDANCER SENTENCED TO $5,000 FINE AND 5 YEAR’S PROBATION FOR
POSSESSING AND TRADING AMERICAN BALD EAGLE FEATHERS
Nashville, TN March
17, 2008 Ed
Yarbrough, U.S. Attorney for the Middle District of
Tennessee and Steve Middleton, Resident Agent in Charge of the United States Fish and Wildlife
Service, Nashville Office, announced today that Ed Winddancer, 51, of Port Charlotte, Florida
was sentenced yesterday to a fine of $5,000 and 5 years of probation for illegally possessing and
trading feathers of American bald and golden eagles.
Mr. Winddancer was arrested in Cookeville, Tennessee in July, 2005 after he traded
feathers of American bald and golden eagles and other protected migratory birds to an undercover
agent of the U.S. Fish and Wildlife Service in exchange for feathers and parts of other protected
wildlife species. Mr. Winddancer also was found to possess more than 1,000 feathers and other
parts of various wildlife species. Mr. Winddancer performed Native American dances and music
for pow wows, civic groups, schools and summer camps. He used feathers and other wildlife
parts to decorate his Native American regalia....
------------
http://www.scam.com/showthread.php?t=36652
atsaligi
Junior Member Join Date: Apr 2008
Posts: 2
Re: Ed Winddancer - Native Religious Scam
Racheal - Sounds as if you really know this man! I met him in 1994 quite by accident and was romantically involved with him in a long-distance relationship off & on for over 5 yrs. Good grief...I nearly lost my business of 10 years to that creep. I also nearly lost my family relations because of him. He is a liar, big time. He at least had real hair when I met him but he creeped me out from the start. There was a hollowness, an emptiness in his eyes, like a shark's eyes. Unfeeling. I am Cherokee but because of family politics, I was never brought up the Red way. Ed grasped that fact very quickly and began posing as, you got it, a Cherokee! I bought into his lies and deceit for about a year before my questions began to be too precise and too inquisitive for him. Basically, he took me for about 11K over those five years and believe me, I no longer trust anyone who cannot look me in the eye and answer my questions. I hope he did not do a number on you but it sounds as if he did. You know what they say: if it does not look real or sound real or feel real, it probably is not real... Good luck in the future anyhow. A true Cherokee.
Devilsmane
Junior Member Join Date: Apr 2008
Posts: 2
Re: Ed Winddancer - Native Religious Scam
Scam artist and con men are by nature people who are able to attract other people. It's part of the scam. To say that this dude is likable only reinforces his status as a con man.
If someone would have a particular reason to state why Edward Arthur Pilert III aka Ed Winddancer (Winddancer is NOT his real name.) is not guilty of possession (There is not "single" feather rule for anyone by the way.) and bartering of Birds of Prey species feathers and parts then I would like to hear that reason.
If someone can provide documentation that there is some sort of universal Indian religion that uses Eagle feathers then I would like to see that documentation.
If somone is claiming that this person is an Indian and belongs to a legitimate tribe, state or Federal, I would like you to supply your proof.
Jimmy Boy Dial
Lumbee-Cheraw
Editor, The Spike
Devilsmane
Junior Member Join Date: Apr 2008
Posts: 2
Re: Ed Winddancer - Native Religious Scam
NANTICOKE INDIAN ASSOCIATION, INC.
27073 JOHN J. WILLIAMS HIGHWAY, MILLSBORO, DE 19966
PH 302.945.3400 FAX 302.947.9411
EMAIL nanticok@verizon.net
WEBSITE www.nanticokeindians.org
April 29, 2008
REGISTERED MAIL – RETURN RECEIPT
REGULAR MAIL
Mr. Edward Winddancer
5521 White Avenue
Port Charlotte, FL 33981
Dear Mr. Winddancer:
The Nanticoke Indian Association, Inc. members at the June 2007 regular monthly meeting held a vote pertaining to the status of your Associate Membership, your use of Nanticoke name and your affiliation with this Association. It was agreed by more than two-thirds vote of the members in attendance that your Associate Membership should be suspended until further notice and your affiliation with the Association should cease until further notice. As you are aware correspondence was sent to you at that time advising you of this status. Unfortunately, in the past months it has come to our attention that you have not honored this request and have continued to publicly state yourself and use your name in an affiliation with the Nanticoke Indian Association, Inc.
At the April 2008 Association regular monthly meeting the members in attendance held another vote concerning your status as an Associate Member of the Association, the outcome of this vote being that more than two-thirds of members in attendance voted that your Association Membership should be terminated and that you should be expelled from the Nanticoke Indian Association, Inc. Due to this current decision of the Association, we are advising you that you have the opportunity of a fifteen (15) day period from the date of receipt of this correspondence to be heard in your own defense of this situation.
In the event that you have any questions or concerns regarding the aforementioned matter, please do not hesitate to contact me.
Very truly yours,
James T. Norwood, Chief
And Tribal Council of the
Nanticoke Indian Association
nativelegaljustice
Ed Winddancer Join Date: Jun 2009
Posts: 2
Re: Ed Winddancer - Native Religious Scam
Like I said, if anyone is interested in the REAL truth about the case, you can contact me through my email ed@edwinddancer.com
--------------
http://www.nativewayproductions.com/Ed%20Winddancer.htm
....Ed WindDancer was paid for the community, school and pow wow performances he referred to as Cultural Work. He also promotes his CDs with his Regalia.
Mr. WindDancer changed his name legally from Edward Arthur Pielert, III to Ed WindDancer in 1992..Visit http://www.co.charlotte.fl.us/clrkinfo/clerk_...
Official records - WindDancer, Ed. He has a brother Paul Michael Pielert in Maryland.
His probation terms require that he live at his ex wife and step daughters home in Port Charlotte. If he is so committed to family why does he introduce his ex- wife Patty and her daughter Terree Grubb of Port Charlotte as an old friend from up North?
Please visit his website at www.edwinddancer.com As you peruse the site please know that Ed WindDancer was born with blue eyes and brown hair. He often wears brown contacts and dyed extensions.
--------------
http://www.powwows.com/gathering/native-issues/36454-powwows-biggest-killer-eagles-4.html
ntownn8ive
As you can see...
Join Date: Sep 2005
Location: We get a lot of sun in Ntown!
Posts: 5,953
Credits: 3,249.29
Blog Entries: 1 Haven't really read thru this thread thoroughly, but I got this in the mail, anyone know either of these dudes?:
EVENT ORGANIZER ALERT
Greetings,
Although for several years I have attempted to curtail the activities of Edward Arthur Pilert III, aka Ed Winddancer (http://www.edwinddancer.com/), my attempts have been futile due to the vast amount of shamery involved with American Indian events throughout the United States. Mr. Pilert has attempted to pass himself off as Lakota, at other times as a Cherokee and recently and most currently as a Nanticoke. He belongs to none of these nations or tribes.
In 2005 Mr. Pilert bartered eagle feathers with an undercover agent for the U.S. Fish and Wildlife Service over several occasions. Subsequently, Mr. Pilert was charged by Federal authorities and a disturbing number of protected bird parts were found in his motorhome. The bird parts and motorhome were confiscated.
Last year Mr. Pilert filed a Motion to Dismiss the Indictment. It makes for interesting reading and I have provided the link so that you can read the opinion that was rendered. I've inserted a small section of the opinion below. Please pay close attention to the second paragraph.
Shortly, Mr. Pilert will be tried in Federal Court. I sincerely hope that he receives the maximum penalties for his crimes. However, I am more concerned that this person not remain a welcome representative of American Indian culture and American Indians at any event in the United States. Mr. Pilert has sucked money and fame from his false and erroneous misrepresentations and now has blighted American Indians nationwide. The time has come for this to end. I hope you agree.
Jimmy Boy Dial
Editor, The Spike
www.thespike.com
http://www.animallaw.info/cases/causfd2006wl1722432.htm (Michigan University College of law)
Wakalapi
www.wakalapi.com
Join Date: Jun 2001
Location: East of the Mountains
Posts: 1,312
Credits: 8,132.32
Just a quick comment that according to Mr. Wind Dancer's website, he was adopted into the Medicine family at Wakpala, SD. My family is also from Wakpala, but I haven't been "back home" since I was 13 and do not know the Medicines or their reason behind making a familial adoption. Being adopted by one family, however, is not the same as being adopted by a tribe or nation. I do not have to accept Mr. Wind Dancer as "my relative" based on his adoption by the Medicine family, and neither do descendants of any other family. Though, I guess, if were to become friends I suppose that would be our choices. There appears to be no legal basis* for the man to possess eagle feathers based solely on that adoption. As far as a cultural basis or sacred reasons, I am not in the position of authority to affirm or rebuke that decision.
-
The Nanticoke Indian Association in response to statements written on Ed Winddancer web pages wishes to clarify the following regarding Ed Winddancer.
Ed Winddancer was an association member of this association,an associate membership is given if the person can not meet the requirements to be a regular member of this association, Mr Ed Winddancer could not prove his relation ship to a member of the tribe. Associate membership is given to people who want to help the tribe they can be white,black are other nationally> Mr Winddancer membership was revolked several years ago, he does not represent the association in any way nor does he speak for it
PLEASE re-post in Frauds section. I couldn't or am not allowed to post there. Thanks, White Horse
-
Ed was kicked out of the Nanicoke tribe, officially he was an Associate member not even an actual member. Recently at a Wannabe Powwow FIHA when handed the microphone. Ed stated to people their he was now Lenape. If you are keeping count Ed winddancer was Cherokee, Lakota, Nanicoke, and now Lenape. By the way he claims he is also an activist fighting for his peoples rights? ::) ::) ::) ::) ::)
-
I have heard some things about Ed over this past year or so. How and where can I find any official statements or documents regarding his true status with any tribe?
I've never heard Ed mention any affiliation other than Nanticote (sp?) and then only once in the dozen times I've seen him. However, others have told me they have heard him say things that would seem that he is claiming or implying a connection to other nations.
So, has there ever been an official statement made by any council, elder or tribe that I can read?
-
All I can say is Wow. I had no idea all this controversy surrounded Ed Winddancer. This surprises me particularly considering the number of real NDN artists and event promoters who regularly schedule Ed for events or perform with him. I've known a few powwow Emcees and ADs who are well known in the greater NDN community across the country who regularly work with Ed and introduce him as a mixed blood NDN artist.
I will keep my eyes and ears open and carefully observe what he says and does next time I am at an event where he is performing. Thank you all for posting this.
dodadagohvi
-
I found the copy of the letter from the tribe in the other topic about Ed, White Horse. Thank you.
-
There is a piece exposing Ed Winddancer in the Daily Mail (a fairly right wing newspaper often referred to as the "Daily Hate") here:
You're a cultural thief! Ten year feud over Native American 'fraud' who performs at heritage festivals (and sells his ancestral chants on MySpace)
Ed Winddancer, 55, changed his name in 1992
With his majestic headdress and fearsome warpaint, Ed Winddancer appears to be carrying on the proud traditions of his Native American ancestors - but according to a long-standing enemy, he is nothing but a fraud in feathers.
Winddancer, 55, traces his roots to the Nanticoke and Cherokee tribes, and often appears in full dress at heritage festivals to play the flute, regaling crowds with ancient stories. He sells CDs of his music through his MySpace page.
However his performances are now often accompanied by the presence of Sal Serbin, 48, who has taken to appearing at Winddancer's gigs holding up signs reading 'Liar' and 'Cultural Thief'.
Read more: http://www.dailymail.co.uk/news/article-2093432/Youre-cultural-thief-Ten-year-feud-Native-American-fraud-performs-heritage-festivals-sells-traditional-chants-MySpace.html#ixzz1l1eXWDWw
It is interesting to me that the mail is covering this story as their usual strategy is to give uncritical coverage to newage frauds and cultural appropriators. Having said that, they have on occasion run some fairly good stories on cults. A few months back they published a piece that promoted some UK newage / "tantric" sex workers who are also deer tribe members however this seems to have been removed.
They also ran this story
Meet Running Bear and Small Warrior (or John and Pauline) who live their lives in Coventry as native American INDIANS in the wild, wild west... Midlands
Read more: http://www.dailymail.co.uk/news/article-2021102/John-Jerzyszek-wife-Pauline-live-native-American-INDIANS-Coventry.html#ixzz1l1d4oB6T
With the removal of the deer tribe related piece and the publishing of the above piece on Ed Winddancer I'm wondering whether the Daily Mail may have discovered the NAFPS boards?
-
I have heard some things about Ed over this past year or so. How and where can I find any official statements or documents regarding his true status with any tribe?
I've never heard Ed mention any affiliation other than Nanticote (sp?) and then only once in the dozen times I've seen him. However, others have told me they have heard him say things that would seem that he is claiming or implying a connection to other nations.
So, has there ever been an official statement made by any council, elder or tribe that I can read?
Ed does not affiliate himself as a tribal member of ANY tribe. If everyone would pay attention, he says that he is of Nanticoke, and Cherokee descent. You do not have to be a member of a tribe to have heritage. Also, if everyone would pay attention to his performances, he alot of times will teach some words in both the Lenape and the Lakota language. He teaches Lenape words because the Lenape language is closest to the Nanticoke language (which by the way has been lost through the years). He was adopted into a Lakota family years ago and learned many things including some of the language. Really wish people would do the right thing and if they have questions about someone, instead of looking to the internet (where people can post any belief and view they want against anyone) they should be contacting Ed himself and get it from the horses mouth.
And yes, he was one time an associate member of the Nanticoke tribe. If all of you out there are such investigators, then I shouldnt have to tell you this, but just in case you didnt know, the Nanticoke tribe of Maryland is not the original Nanticoke tribe. It was formed by a handful of people with Nanticoke heritage who wanted to bring others with the heritage together. The way this association formed its 'rules for membership' is you had to be able to trace your heritage back to just a couple of the families that started the association. Everyone else can only be an associate member. The letter that is flying around the internet from the tribe, is a letter that was send to Ed after he was arrested for having feathers without a permit. Since the only way you can obtain a 'permit' for feathers is to be a member of a federally recognzied tribe, ALL Nanticoke tribal members can not have feathers in their possession. The tribe dismissed Ed while the case was going on. (How rude)
Ed and I are tired of all these idiots out there like Sal Serbin and Rex Begaye that purposely spread false information about people just to try to make a name for themselves. Sal has tried to spread that Ed is in violation of the Native American Arts and Crafts Act by selling his CD's and doing performances. ONCE AGAIN, it doesnt take but a few minutes to look up the act which clearly states that music, actors, entertainers, and musicans are exempt. I could go on and on with all the bullshit that is posted out there by these guys that is totally false and waiting for anyone to read and run with it before taking a moment to looking into it yourself.
-
When Ed was arrested for possessing feathers without a permit it was reported that he had well over 1,000 feathers and parts which he was bartering. He was commodifying sacred items. This is not the type of person who should be representing themselves as indigenous, whether it is as an entertainer or educator.
With regard to the Nanticoke language, there's been a language reclamation project going on since I think 2007.
I don't much care that you and Ed are tired of this. I'm tired of people who profit off the culture when they have no right to. If Ed stops what he is doing I am sure that others will stop exposing him. It's a win win situation.
-
the Nanticoke tribe of Maryland is not the original Nanticoke tribe. It was formed by a handful of people with Nanticoke heritage who wanted to bring others with the heritage together.
A heritage group, from what I understand, is quite different than a "tribe"? Some one can correct me on this if I'm wrong..
-
I have heard some things about Ed over this past year or so. How and where can I find any official statements or documents regarding his true status with any tribe?
I've never heard Ed mention any affiliation other than Nanticote (sp?) and then only once in the dozen times I've seen him. However, others have told me they have heard him say things that would seem that he is claiming or implying a connection to other nations.
So, has there ever been an official statement made by any council, elder or tribe that I can read?
Ed does not affiliate himself as a tribal member of ANY tribe. If everyone would pay attention, he says that he is of Nanticoke, and Cherokee descent. You do not have to be a member of a tribe to have heritage. Also, if everyone would pay attention to his performances, he alot of times will teach some words in both the Lenape and the Lakota language. He teaches Lenape words because the Lenape language is closest to the Nanticoke language (which by the way has been lost through the years). He was adopted into a Lakota family years ago and learned many things including some of the language. Really wish people would do the right thing and if they have questions about someone, instead of looking to the internet (where people can post any belief and view they want against anyone) they should be contacting Ed himself and get it from the horses mouth.
And yes, he was one time an associate member of the Nanticoke tribe. If all of you out there are such investigators, then I shouldnt have to tell you this, but just in case you didnt know, the Nanticoke tribe of Maryland is not the original Nanticoke tribe. It was formed by a handful of people with Nanticoke heritage who wanted to bring others with the heritage together. The way this association formed its 'rules for membership' is you had to be able to trace your heritage back to just a couple of the families that started the association. Everyone else can only be an associate member. The letter that is flying around the internet from the tribe, is a letter that was send to Ed after he was arrested for having feathers without a permit. Since the only way you can obtain a 'permit' for feathers is to be a member of a federally recognzied tribe, ALL Nanticoke tribal members can not have feathers in their possession. The tribe dismissed Ed while the case was going on. (How rude)
Ed and I are tired of all these idiots out there like Sal Serbin and Rex Begaye that purposely spread false information about people just to try to make a name for themselves. Sal has tried to spread that Ed is in violation of the Native American Arts and Crafts Act by selling his CD's and doing performances. ONCE AGAIN, it doesnt take but a few minutes to look up the act which clearly states that music, actors, entertainers, and musicans are exempt. I could go on and on with all the bullshit that is posted out there by these guys that is totally false and waiting for anyone to read and run with it before taking a moment to looking into it yourself.
Hi Tami. You might be surprised, but I find myself agreeing with you about a lot of things. I don't see you lying about anything. I had one slight problem with something I think you mischaracterized.
"Ed does not affiliate himself as a tribal member of ANY tribe."
I think that's true currently, but in the past that hasn't always been the case. I've seen him state himself on youtube videos "I am a Nanticoke Indian" on videos as recent as 2008. But anything that's relatively current with his name on it usually states it the way you described it. I don't seem him truly mispresenting himself, but I do have another theory of why some may be put off by him. I'm just stating my personal opinion, but I find his performances on the reallllllly cheesy side. Cringeworthy. One example would be the youtube commercial he has for the "Flight of the Red Tail Hawk" show upcoming for him.
http://www.youtube.com/watch?v=Dj5ykv-PfVs
Sorry....but I get put off by someone who presents themself in this way, but it doesn't matter if they're Native or not....they could be a rap artist, if they were this bad and I were another rap artist....I'd be upset at them too.
And it doesn't really end there....that video is really just the beginning. Sorry, not trying to be mean. I'm not perfect either, but if you're gonna put yourself out there in that way....it needs to be wayyyyy better. He comes off more as weird and entertaining to children, but in my opinion, he's not a good educator and should think about being more honest about that. As an entertainer, as I said, cringeworthy. Just my thoughts. Not saying he's a fraud or he's not, but I can certainly see why some would accuse him of being one without first getting to know him.
Superdog
-
Public Records of a Federal Court case when ed was caught selling Eagle Feathers, and it is documented that he sold to undercover agents not once but TWICE!
*** ed winddancer plead guilty to avoid trial after the motions were dismissed. If the case would have gone to trial ed winddancer faced 6 counts of $115,000.00 for a total of $ 690,000.00 Fine and 6 counts of 5 years in jail for a total of 30 years. ed winddancer was only fined $ 5000.00 and 5 years probation. *** Each feather is a charge, ed winddancer had hundreds of feathers seized, too bad he was not charged properly.***
======================================================================================
Because Winddancer is not a member of a federally recognized Native American tribe, the Indictment
charges that he has violated the Bald and Golden Eagle Protection Act (“BGEPA”),
16 U.S.C. § 668(a)
, and the Migratory Bird Treaty Act (“MBTA”),
16 U.S.C. § 703, by possessing the feathers. On July
20, 2005, Winddancer traded feathers with an undercover agent for the U.S. Fish and Wildlife Service.
The agent and Winddancer *690 traded feathers on two successive days, after which two other Fish and
Wildlife agents searched Winddancer's motor home, finding many contraband feathers. (Docket No. 30.)
Winddancer was subsequently indicted on six charges: (1) possession, bartering, and offering to barter
eagle feathers on July 20, 2005, in violation of the BGEPA; (2) possession, bartering, and offering to
barter eagle feathers on July 21, 2005, in violation of the BGEPA; (3) possession, bartering, and offering
to barter migratory bird feathers on July 20, 2005, in violation of the MBTA; (4) possession, bartering,
and offering to barter migratory bird feathers on July 21, 2005, in violation of the MBTA; (5) selling and
receiving contraband wildlife in excess of $350 on July 20, 2005, in violation of both the BGEPA and the
MBTA; and (6) selling and receiving contraband wildlife in excess of $350 on July 21, 2005, in violation
of both the BGEPA and MBTA. In addition, the United States seek forfeiture of Winddancer's collection
of contraband feathers and parts, as well as his motor home, for its use in possessing and selling the items.
(Docket No. 22).
***This shows that recieved money in excess of $350.00 for the feathers***
==================================================================================
United States District Court,
M.D. Tennessee,
Nashville Division.
UNITED STATES of America
v.
Ed WINDDANCER.
No. 2:05-00014.
June 19, 2006.
Background: Defendant, indicted on six counts relating to possessing and bartering eagle feathers and feathers plucked from other migratory birds, moved to dismiss.
Holdings: The District Court, Trauger, J., held that:
(1) defendant lacked standing to challenge the constitutionality of regulations implementing the Migratory Bird Treaty Act (MBTA);
(2) defendant's rights under the Religious Freedom Restoration Act (RFRA) were not violated by his indictment for violating the MBTA;
(3) defendant's rights under RFRA were not violated by his indictment for, inter alia, possessing feathers of eagles in violation of the Bald and Golden Eagle Protection Act (BGEPA);
(4) defendant who engaged in feather-for-feather exchanges was properly indicted for bartering migratory bird feathers in violation of MBTA.
Motion denied.
MEMORANDUM
TRAUGER, District Judge.
This matter comes before the court on a Motion to Dismiss the Indictment filed by the defendant (Docket No. 30), to which the United States has responded (Docket No. 38). For the reasons discussed herein, the defendant's motion will be denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The defendant, Ed Winddancer, was indicted on six counts relating to possessing and bartering eagle feathers and feathers plucked from other migratory birds. (Docket No. 30.) Winddancer, as befits his name, performs Native American dances at pow-wows and has produced recordings of Native American flute music and traveled to Europe to perform his music and dance. While dancing, Winddancer wears the feathers of eagles, hawks and other birds. He alleges that the sacred feathers are crucial to the proper practice of his religion, which he alleges to be a Native American religion, though he does not specify which one.
Because Winddancer is not a member of a federally recognized Native American tribe, the Indictment charges that he has violated the Bald and Golden Eagle Protection Act (“BGEPA”), 16 U.S.C. § 668(a), and the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. § 703, by possessing the feathers. On July 20, 2005, Winddancer traded feathers with an undercover agent for the U.S. Fish and Wildlife Service. The agent and Winddancer *690 traded feathers on two successive days, after which two other Fish and Wildlife agents searched Winddancer's motor home, finding many contraband feathers. (Docket No. 30.) Winddancer was subsequently indicted on six charges: (1) possession, bartering, and offering to barter eagle feathers on July 20, 2005, in violation of the BGEPA; (2) possession, bartering, and offering to barter eagle feathers on July 21, 2005, in violation of the BGEPA; (3) possession, bartering, and offering to barter migratory bird feathers on July 20, 2005, in violation of the MBTA; (4) possession, bartering, and offering to barter migratory bird feathers on July 21, 2005, in violation of the MBTA; (5) selling and receiving contraband wildlife in excess of $350 on July 20, 2005, in violation of both the BGEPA and the MBTA; and (6) selling and receiving contraband wildlife in excess of $350 on July 21, 2005, in violation of both the BGEPA and MBTA. In addition, the United States seek forfeiture of Winddancer's collection of contraband feathers and parts, as well as his motor home, for its use in possessing and selling the items. (Docket No. 22).
The Secretary of the Interior has issued a set of regulations for both the BGEPA and the MBTA, creating a permit system which allows for limited possession of bird parts. 50 C.F.R. §§ 22.11(a), 22.22. The BGEPA applies only to bald and golden eagles. Under the regulations for the BGEPA, only members of Indian tribes recognized by the United States Bureau of Indian Affairs may apply for a permit to possess bald and golden eagle feathers for religious use. 50 C.F.R. § 22.22. The permits are good for life and grant the recipient access to the National Eagle Repository. Id. In general, Native Americans are not permitted to acquire eagle parts from any source other than the National Repository. However, certain tribes are allowed to take birds from private rookeries for use in religious ceremonies.
Unlike the BGEPA, the MBTA covers all migratory birds. Under the MBTA's regulations, several avenues are open for legal possession of migratory bird parts that are not available for possession of bald and golden eagle parts. Under the “Morton Policy,” promulgated by Secretary of Interior Rogers C.B. Morton, all American Indians-that is, members of federally recognized Indian tribes-“may possess, carry, use, wear, give, loan, or exchange among other Indians, without compensation” migratory birds and bird parts covered by the MBTA without a permit. (Docket No. 30, Ex. 11.) In addition, the regulations implementing the MBTA provide for permits to possess migratory bird parts for a variety of purposes. For instance, 50 C.F.R. § 21.27 provides for special purpose permits available to all citizens “for special purpose activities related to migratory birds, their parts, nests, or eggs” that are not otherwise provided for by the other permit provisions. However, Winddancer did not apply for a permit, under that section or any other permit provision.
On April 27, 2006, the defendant filed a Motion to Dismiss the Indictment, alleging that both the BGEPA and the MBTA, as implemented by the Department of Interior, violate his rights under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb. (Docket No. 30.) Specifically, the defendant alleges that both statutes as implemented substantially burden his sincere religious practices involving the feathers and parts of protected birds and that the burden does not further a compelling government interest by the least restrictive means.
-
Part 2
ANALYSIS
I. Standard of Review
[1] Motions to dismiss indictments are governed by *691 Rule 12 of the Federal Rules of Criminal Procedure, which states “Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.” Fed.R.Crim.P. 12(b). The Sixth Circuit guides district courts to “dispose of all motions before trial if they are capable of determination without trial of the general issue.” U.S. v. Jones, 542 F.2d 661, 665 (6th Cir.1976). Moreover, “Rule 12 vests the Court with authority ‘to determine issues of fact in such manner as the court deems appropriate.’ ” Id. (quoting Notes of the Advisory Committee to Fed.R.Crim.P. 12, reprinted in 8 Moore P 12.01(3) at 12-8). The Federal Rules of Criminal Procedure “clearly envision that a district court may make preliminary findings of fact necessary to decide the questions of law presented by pre-trial motion so long as the court's findings on the motion do not invade the province of the ultimate finder of fact.” Jones, 542 F.2d at 664; see also U.S. v. Craft, 105 F.3d 1123, 1126 (6th Cir.1997) (“District Courts may ordinarily make preliminary findings of fact necessary to decide questions of law presented by pretrial motions so long as the trial court's conclusions do not invade the province of the ultimate factfinder.”). A defense raised in a motion to dismiss indictment is “capable of determination if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.” Jones, 542 F.2d at 664 (citing United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1561, 23 L.Ed.2d 94 (1969)).
[2] An indictment that is valid on its face may not be dismissed on the ground it is based on inadequate or insufficient evidence. United States v. Williams, 504 U.S. 36, 54, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992). Therefore, a court cannot consider a factual challenge to an indictment purporting to show a defect consisting solely of insufficient evidence to prove a particular charge. Id. Rule 12(b)(1) of the Federal Rules of Criminal Procedure, which cautions the trial judge that he may consider on a motion to dismiss the indictment only those objections that are “capable of determination without the trial of the general issue,” indicates that evidentiary questions of this type should not be determined on such a motion. United States v. Knox, 396 U.S. 77, 83 n. 7, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969). In short, “a motion to dismiss should be denied if it requires a pretrial test of the government's evidence.” U.S. v. Jones, No. 1:05-132, 2006 WL 399234, at *1 (E.D.Tenn. Feb.16, 2006).
[3] On a motion to dismiss indictment, “the [c]ourt must view the ndictment's factual allegations as true, and must determine only whether the ndictment is ‘valid on its face.’ ” U.S. v. Campbell, No. 02-80863, 2006 WL 897436, at *2 (E.D.Mich. April 6, 2006) (citing Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956)). Accordingly, the court must resolve factual issues in this case, such as they exist, in favor of the indictment. With this standard in mind, the court turns to an analysis of the defendant's motion.
II. Defendant's RFRA Defenses
The defendant argues that he is exempt from prosecution for possessing and bartering contraband bird parts under the RFRA. That statute provides that the “[g]overnment may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest.” 42 U.S.C. § 2000bb-1(b).FN1 The defendant alleges*692 that his activities involving the feathers hold a religious significance to him, and, though he concedes that the government has a compelling interest in preserving both the birds themselves and the cultures of recognized Indian tribes (which require access to some protected birds), he maintains that the government has not chosen the least restrictive means of furthering those interests. The court disagrees.
FN1. The RFRA was declared unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507, 530-35, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). However, it remains valid as applied to the federal government. See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, ----, 126 S.Ct. 1211, 1216, 163 L.Ed.2d 1017 (Feb. 21, 2006); United States v. Sandia, 188 F.3d 1215, 1217 (10th Cir.1999); Adams v. CIR, 170 F.3d 173, 175 (3d Cir.1999); Alamo v. Clay, 137 F.3d 1366, 1367 (D.C.Cir.1998).
[4] [5] It was Congress' intention, in enacting the RFRA, to restore the compelling interest test long applied by the Supreme Court when interpreting the Free Exercise Clause of the First Amendment to the Constitution- see, e.g., Sherbert v. Verner, 374 U.S. 398, 405, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)-and abandoned by the Court in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). See In re The Grand Jury Empaneling, 171 F.3d 826, 829 (3rd Cir.1999) (In the RFRA, Congress attempted “to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder.”). Under the RFRA, as in the compelling interest test, the defendant bears the initial burden to demonstrate a sincere religious belief that has been substantially burdened by the state. U.S. v. Meyers, 95 F.3d 1475, 1483 (10th Cir.1996) (citing Yoder, 406 U.S. at 215, 92 S.Ct. 1526) (beliefs that are “philosophical and personal rather than religious ... [do] not rise to the demands of the Religion Clauses”). Once the defendant has made that showing, the burden shifts to the state to demonstrate that the challenged regulation furthers a compelling state interest by the least restrictive means. Adams, 170 F.3d at 175; Jolly v. Coughlin, 76 F.3d 468, 478 (2d Cir.1996).
A. Defendant's Standing to Challenge the MBTA
[6] Before performing the burden shifting analysis described above, the court must address a standing issue. The United States argues that the defendant does not have standing to challenge the regulations implementing the MBTA because, under those regulations, the defendant could have applied for a permit to possess migratory bird parts but did not do so. Indeed, courts have not typically allowed defendants to make collateral challenges to regulatory statutes where the defendant inexplicably failed to apply for a permit to perform the activity in question. Madsen v. Boise State University, 976 F.2d 1219, 1221 (9th Cir.1992) (“[A] plaintiff lacks standing to challenge a rule or policy to which he has not submitted himself by actually applying for the desired benefit.”); see also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-71, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) (plaintiff who had never applied for membership lacked standing to challenge fraternal organization's discriminatory membership policies); Lehon v. City of Atlanta, 242 U.S. 53, 56, 37 S.Ct. 70, 61 L.Ed. 145 (1916) (non-resident who never applied for permit lacked standing to challenge licensing ordinance on ground that city officials discriminate in favor of residents in awarding licenses); Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 56 (D.C.Cir.1991) (plaintiffs lacked standing to challenge failure to extend Indian hiring preferences into job categories for which *693 they never formally applied); Oil, Chemical & Atomic Workers Int'l Union v. Gillette Co., 905 F.2d 1176, 1177 (8th Cir.1990) (employee who has not filed benefits claim lacks standing to challenge employer's retirement policy); Doe v. Blum, 729 F.2d 186, 189-90 (2d Cir.1984) (plaintiffs who never requested family planning services may not challenge Medicaid distribution procedures); Brown v. Sibley, 650 F.2d 760, 770-71 (5th Cir. Unit A Jul.1981) (plaintiffs who had never participated in or been excluded from program receiving federal funding lacked standing to challenge its compliance with Rehabilitation Act); Jackson v. Dukakis, 526 F.2d 64, 65-66 (1st Cir.1975) (plaintiff who did not apply for employment with state agencies lacks standing to allege discriminatory hiring practices); Interstate Commerce Comm'n v. Appleyard, 513 F.2d 575, 577 (4th Cir.1975) (trucker who has never applied for ICC transportation permit has “suffered no legally cognizable injury” from policy), cert. denied, 423 U.S. 840, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975).
This standing requirement “serves the salutary objective of ensuring that only those individuals who cannot resolve their disputes without judicial intervention wind up in court,” Madsen, 976 F.2d at 1221, for, as the United States argues, the court has no way to know whether the defendant could have been granted a “special purpose” permit under 50 C.F.R. § 21.27 without his having applied for one. In the event that the defendant were granted such a permit and could legally possess migratory bird feathers, the MBTA could not be said to burden his religious use of the feathers. See, e.g., East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 227 (6th Cir.1995) (holding that the plaintiffs lacked standing to challenge a permit provision without showing that they would have been ineligible to obtain a permit).
In similar challenges to federal bird feather regulations, courts have addressed the standing issue consistently with the above approach. In United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir.1997), the court held that the defendant-a member of a federally recognized Indian tribe-did not have standing to challenge BGEPA as it applied to him personally, because he could have applied for a permit to possess the bird parts legally but did not do so. Reasoning that “failure to apply for a permit precludes challenge to the manner in which the Act is administered,” the court held that the defendant could challenge only the “facial validity of the BGEPA and its regulations” and not “the operation of the underlying administrative scheme.” Id, see also U.S. v. Lundquist, 932 F.Supp. 1237, 1242 n. 4 (D.Or.1996) (holding that the defendant “has no standing to challenge the alleged imperfections of the permit process because he has never applied for a permit”); United States v. Thirty Eight Golden Eagles or Eagle Parts, 649 F.Supp. 269, 277 (D.Nev.1986) (holding that the defendant could challenge only the “facial validity of the Act” and not “the manner in which the Act is administered” where the defendant had “not applied for a relevant permit”).
[7] In United States v. Hardman, 297 F.3d 1116, 1121 (10th Cir.2002), the court held that the defendants did have standing to challenge the regulatory scheme at issue because applying for permits would have been futile. In Hardman, the defendants challenged only the BGEPA, which does not allow non-members of federally recognized tribes to apply for permits, and not the MBTA, which does allow for such permits. Id. at 1120-21. As in Hardman, Winddancer does have standing to challenge the regulations administering the BGEPA because-for the same reasons as in Hardman-applying for a BGEPA permit*694 would have been futile for Winddancer. However, Winddancer does not have standing to challenge the manner in which the MBTA has been administered against him, because applying for a permit under the MBTA would not have been clearly futile. Id., see also United States v. Gonzales, 957 F.Supp. 1225, 1227 (D.N.M.1997) (“permitting the defendant to mount a challenge to the permit process without having applied for a permit only where the defendant challenged the fact of the application process itself”).
Having established that Winddancer can mount only a “facial” challenge to the MBTA, it is necessary to define how exactly that “facial” challenge differs from an “as applied” challenge.FN2 The Supreme Court has held that a facial challenge requires a showing that “no set of circumstances exists under which the Act [in question] would be valid.” Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (O'Connor, J., concurring) (quoting Webster v. Reproductive Health Services, 492 U.S. 490, 524, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989)); see also U.S. v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”). Therefore, in order to demonstrate that the MBTA is facially invalid, the defendant would have to show that it is not capable of being applied without violating the RFRA.
FN2. The court will assume, in accordance with other federal courts to address this issue, that the RFRA-which creates statutory, and not Constitutional rights-can be called upon to mount both “facial” and “as applied” challenges to federal legislation. Hugs, 109 F.3d at 1378.
[8] The defendant has not shown, nor has he even alleged, that the MBTA is incapable of application without violating religious rights guaranteed by the RFRA. Instead, the defendant challenges a specific facet of its application-the “Morton Policy”-under which members of federally recognized Indian Tribes are not subject to the Act. The defendant does not allege that the MBTA cannot be constitutionally enforced but rather that the “Morton Policy” should be expanded, ever so slightly, to include religious practitioners such as himself. Therefore, the defendant's MBTA challenge must fail.FN3
FN3. The defendant has not invoked the “overbreadth doctrine” in order to circumvent the standing requirement for the MBTA challenge, and for good reason. Because the defendant's challenge arises under the RFRA, and not the First Amendment, the “overbreadth doctrine” may not be invoked to expand review of the MBTA. See Coleman v. DeWitt, 282 F.3d 908, 914 (6th Cir.2002) (“Neither the Supreme Court nor this court has applied the overbreadth doctrine when the First Amendment was not implicated.”); Salerno, 481 U.S. at 745, 107 S.Ct. 2095 (“We have not recognized an overbreadth doctrine outside the limited context of the First Amendment.”).
B. Defendant's Challenge to the BGEPA
Because it would have been futile for the defendant to apply for a permit under the BGEPA, the court now turns to analyze the defendant's RFRA challenge to his prosecution under that statute. Hugs, 109 F.3d at 1378.
1. A Sincere Exercise of Religion
[9] The defendant bears the initial burden of demonstrating that the regulations at issue substantially burden a sincere religious belief. Yoder, 406 U.S. at 215, 92 S.Ct. 1526 (beliefs that are “philosophical and personal rather than religious ... [do] not rise to the demands of the Religion *695 Clauses”). Although the defendant has shown that the BGEPA substantially burdens his ability to possess eagle feathers-under BGEPA, he may not possess them-he has not shown that his desire to possess the feathers arises from a sincere religious belief.
The defendant has identified at least some Native American ancestry on both sides of his genealogy. According to the defendant, his father had Cherokee ancestry, and his mother Nanticoke ancestry. (Docket No. 30 at p. 2-3.) In addition, he alleges to have been formally admitted as an associate member to the Nanticoke tribe (which is not federally recognized), and to have been adopted by a Lakota family. (Id.) He is not a member of the Lakota tribe, however, or the Cherokee tribe. (Id.) According to the materials attached to the defendant's brief, the Nanticoke people are indigenous to Delaware. (Docket No. 30, Ex. 2.) The Cherokee tribe and Lakota tribe are each, respectively, located in different geographic areas. The people of these tribes each practice their own religions; however, the defendant does not identify which of them, if any, he practices. Rather, he alleges to be a “sincere adherent to a bona fide Native American religion,” and that he “exercises that religion through sacred dances.” (Docket No. 30 at p. 3.) The defendant does not support that allegation with any documents or affidavits, nor does he identify to which specific Native American religion he adheres. Therefore, he has not met his initial burden under the RFRA to demonstrate that his possession of eagle feathers arises from a sincere religious belief, and not a cultural or philosophical expression. See, e.g., Diaz v. Collins, 114 F.3d 69, 72 (5th Cir.1997) (defendant bears the burden of demonstrating a substantial burden to a sincere religious belief).
2. The Least Restrictive Means
[10] Even if the defendant had met his initial burden, the court could not grant his motion to dismiss indictment because the United States has shown that the regulations implementing the BGEPA further a compelling government interest by the least restrictive means. Because neither party disputes that the regulations implementing the BGEPA further two compelling government interests, which are actually at odds-the preservation of bald and golden eagles, and the preservation of federally recognized Indian tribes-the only issue is whether or not the regulations further those goals by the least restrictive means. The court finds that they do.
As noted, the defendant does not dispute the government's compelling interest in supporting bald and golden eagle populations. Instead, the defendant argues that the government's restrictions are unduly burdensome, because it can meet its interest simply by enforcing laws banning eagle poaching. (Docket No. 30 at p. 32.) That is, by legalizing possession of eagle parts, but maintaining the federal repository as the sole legal means of access to them, the defendant argues that the United States can protect bald and golden eagles without burdening his religious use of feathers. The United States has shown, however, that it cannot serve its interest in protecting eagles solely through anti-poaching laws, because it cannot enforce anti-poaching laws without restricting possession of eagle parts. To illustrate, the government has submitted numerous affidavits from the Department of Interior, including an affidavit from Lucinda D. Schroeder, a Special Agent with the U.S. Fish and Wildlife Service, which states:
The fact that the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act both contain possession prohibitions, and not just prohibitions *696 against killing the birds, is significant for law enforcement efforts. This is because there is no reasonable forensic method by which law enforcement can determine if a bird was accidentally or intentionally killed, killed a hundred years ago, or killed yesterday. (Docket No. 38, Ex. 2 at ¶ 8.)
That is, the government cannot enforce its eagle protection laws without banning possession, at least to some degree, because of the low probability of discovering poachers in the act. ( See Affidavit of Edgardo O. Espinoza, Docket No. 38, Ex. 3 at ¶ 4) (“There is no scientific test currently available that could determine whether the part came from the Repository or any other source.”). The situation with regard to bald and golden eagle feathers is similar to other crimes, such as child pornography, where it is difficult to prove the underlying illegal act once the item is reduced to possession. 18 U.S.C. § 2252(a)(4)(B).
One reason why enforcement of the poaching ban presents such difficulties is the existence of an extensive black market for bald and golden eagle parts, which is driven primarily by the money prizes offered at pow-wow dancing competitions. (Affidavit of Douglas Goessman, Docket No. 38, Ex. 7 at 4-5.) Due to the difficulty in stemming this black market, the government has shown that it is virtually impossible for the Fish and Wildlife Service to protect bald and golden eagles without some ban on possession. ( Id. at 9-10) (“t is my belief, any additional exemptions to the BGEPA, such as having the USFWS ... begin issuing eagle feathers to persons other than Native Americans ... would eventually devastate state, federal and tribal conservation law enforcement efforts to protect bald and golden eagles.”). Prohibiting possession of contraband is often asserted as a valid means of eliminating the fruits of an illegal act. See, e.g. Employment Division, Dept. Of Human Resources of Oregon v. Smith, 494 U.S. 872, 905, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990); Osborne v. Ohio, 495 U.S. 103, 109-110, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990).
In addition, the United States has demonstrated that poaching presents a significant challenge to bald and golden eagles, due to the low reproductive rates of those species. (Affidavit of Jody Gustisus Millar, Docket No. 38, Ex. 10.) Bald eagles, for instance, do not mature until they are between four and six years old and, once they do begin producing young, do so at an average rate of only two per year. ( Id. at ¶ 14.) Due to the low reproductive rates, bald eagle populations rely on a high survival rate for adults, as opposed to a high production of young, to ward off extinction. (Id. at ¶ 15.) If poaching were to increase-due to an increased demand for black market bird parts, which could itself be caused by the loosening of the anti-possession laws-the eagle populations would likely suffer. ( Id. at ¶ 18) (“- n a long-term or widespread basis, unregulated take of mature bald eagles can depress, and potentially endanger the population.”)
It was against this background of enforcement difficulties in the face of a black market in eagle parts-leading to a potential loss in eagle populations-that the Department of Interior sought to fashion a rule which preserves the traditional Native American use of feathers for religious purposes. See United States v. Dion, 476 U.S. 734, 743-44, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986) (“Congress ... considered the special cultural and religious interests of Indians, balanced those needs against the conservation purposes of the statute, and provided a specific, narrow exception....”). The United States and the defendant both agree that protecting the traditional religious customs of federally recognized Indian tribes is a compelling government interest. It was in furtherance*697 of that interest that the Department created the eagle repository system, currently under which Native Americans face a waiting period of up to two years after submitting a request before receiving feathers, depending on the size and nature of the request. The defendant argues that, were he allowed to request eagle parts through the repository system, the wait would not be significantly lengthened, and therefore, that the BGEPA regulations are not narrowly tailored. However, the court finds that the defendant takes too narrow a view of the situation.
The Department of Interior cannot limit access to the eagle repository to “sincere adherents of Native American Religions” as the defendant suggests. Such a rule would violate the Establishment Clause. See Rice v. Cayetano, 528 U.S. 495, 514-17, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000). If the eagle repository is to be opened up to all sincere adherents of Native American Religions, it must be opened up to all sincere adherents of all religions. Id. As the United States has shown, that could end up being a significant number of people, which would severely limit Native Americans' access to feathers through the repository system.FN4 It would also, as highlighted above, create enforcement problems. Before arresting any person for illegal possession of eagle feathers, federal agents would be forced to determine, on a case-by-case basis, whether the eagle feathers were indeed a necessary part of that individual's religious practice. (Docket No. 38, Ex. 2 at ¶ 13.) That is an untenable situation. (Id.) (“t is virtually impossible as a practical matter to challenge an individual's assertion that he holds a sincere religious belief that requires the use of eagle feathers or other parts.”)
FN4. For instance, the members of the Wiccan and Santeria religions would likely require feathers. (Docket No. 38, Ex. 14 at ¶ 4; Ex. 15 at ¶ 6 “t would be impossible to handle the number of eagle feather permits if virtually anyone could apply for this type of permit without increased staff and major funding.”). In particular, the Santeria religion involves a sacrifice to Osain, an “extremely important deity” who requires a “ritual preparation [which] consists in preparing a gourd which ideally should contain up to 101 heads of different birds. Selected feathers of various birds contained in Osain's [gourd] are: owl, EAGLE, turkey, vulture, hawks, parrots, canaries, etc. Again, the feathers and/or the heads of the birds symbolize the powers of Osain as the Orisha of the woods and all the magical herbs and roots contained therein.” (Docket No. 38, Ex. 18 at p. 5).
By predicating participation in the eagle repository on an ostensibly political categorization, and not a religious one, the Department of Interior deftly side-stepped the Establishment Clause and struck a careful balance between eagle preservation, and the preservation of Native American cultures. Were this category to be nullified, and the ban on eagle possession for non-official tribe-members lifted, it is possible that both government concerns would be thwarted-that is, both eagle populations and Native American cultures would suffer.
In United States v. Antoine, 318 F.3d 919, 922-23 (9th Cir.2003), the Ninth Circuit Court of Appeals addressed whether or not the BGEPA violated the RFRA by barring non-members of federally recognized Indian tribes from accessing eagle feathers-the very issue we address today. In Antoine, the court recognized that, since the government had a compelling interest in protecting eagle populations to some degree, and because those populations are finite, “the burden on religion is inescapable; the only question is who to burden and how much.” Id. at 923. In Antoine, as in this case, the defendant sought “to burden other people's religion more and his religion less,” but as the *698 Ninth Circuit pointed out, “[t]his is not a viable RFRA claim; an alternative can't fairly be called ‘less restrictive’ if it places additional burdens on other believers.” Id., see also United States v. Hugs, 109 F.3d 1375, 1379 (9th Cir.1997) (holding that the BGEPA permit scheme did not violate the RFRA); U.S. v. Sandia, 188 F.3d 1215, 1218 (holding that the defendant's prosecution for selling protected eagles under the BGEPA did not violate the RFRA); but see United States v. Hardman, 297 F.3d 1116, 1135 (10th Cir.2002) (holding that the factual record did not, at the time, support a ruling on the RFRA issue).
The BGEPA regulations strike a delicate balance. Were the BGEPA to simply ban possession for all persons, the government would have succeeded in protecting eagle parts, but failed to protect Native American culture. Were the BGEPA to allow all persons to possess the eagle parts for any religious use, it would create severe difficulties in enforcing poaching laws, because it is (1) very rare to catch poachers in the act of poaching, and (2) nearly impossible to determine whether the birds were poached or not, when confiscated. Not only would the waiting period swell, making it difficult for the recognized tribes to use birds for their ceremonies, but the black market would also increase, since more people would be able to possess eagle feathers-legally or illegally procured-without fear of prosecution. In the long run, eagle populations would suffer. In the ensuing eagle scarcity, the government would have failed at both of its objectives.
In forming its categorization on a political basis, the government has balanced its two competing objectives in the only way this court has been shown to be possible. By limiting the number of people who can possess the feathers, the government succeeds in limiting the potential customers for the black market in eagle feathers. It also keeps the waiting period for the eagle repository low. By granting access to the feathers only to members of the officially recognized tribes, the government protects those tribes in the only way possible under the Establishment Clause. The government has met its burden in showing that the regulations further a compelling government interest by the least restrictive means.
II. Defendant's Alternative Defenses Under the MBTA
Alternatively to his RFRA defenses, the defendant claims that he has not been properly charged under the MBTA because he did not actually “barter” or “possess” the contraband migratory bird feathers, as those terms are used in that statute. The court disagrees and finds that he was properly charged under the MBTA.
-
ANALYSIS
I. Standard of Review
[1] Motions to dismiss indictments are governed by *691 Rule 12 of the Federal Rules of Criminal Procedure, which states “Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.” Fed.R.Crim.P. 12(b). The Sixth Circuit guides district courts to “dispose of all motions before trial if they are capable of determination without trial of the general issue.” U.S. v. Jones, 542 F.2d 661, 665 (6th Cir.1976). Moreover, “Rule 12 vests the Court with authority ‘to determine issues of fact in such manner as the court deems appropriate.’ ” Id. (quoting Notes of the Advisory Committee to Fed.R.Crim.P. 12, reprinted in 8 Moore P 12.01(3) at 12-8). The Federal Rules of Criminal Procedure “clearly envision that a district court may make preliminary findings of fact necessary to decide the questions of law presented by pre-trial motion so long as the court's findings on the motion do not invade the province of the ultimate finder of fact.” Jones, 542 F.2d at 664; see also U.S. v. Craft, 105 F.3d 1123, 1126 (6th Cir.1997) (“District Courts may ordinarily make preliminary findings of fact necessary to decide questions of law presented by pretrial motions so long as the trial court's conclusions do not invade the province of the ultimate factfinder.”). A defense raised in a motion to dismiss indictment is “capable of determination if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.” Jones, 542 F.2d at 664 (citing United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1561, 23 L.Ed.2d 94 (1969)).
[2] An indictment that is valid on its face may not be dismissed on the ground it is based on inadequate or insufficient evidence. United States v. Williams, 504 U.S. 36, 54, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992). Therefore, a court cannot consider a factual challenge to an indictment purporting to show a defect consisting solely of insufficient evidence to prove a particular charge. Id. Rule 12(b)(1) of the Federal Rules of Criminal Procedure, which cautions the trial judge that he may consider on a motion to dismiss the indictment only those objections that are “capable of determination without the trial of the general issue,” indicates that evidentiary questions of this type should not be determined on such a motion. United States v. Knox, 396 U.S. 77, 83 n. 7, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969). In short, “a motion to dismiss should be denied if it requires a pretrial test of the government's evidence.” U.S. v. Jones, No. 1:05-132, 2006 WL 399234, at *1 (E.D.Tenn. Feb.16, 2006).
[3] On a motion to dismiss indictment, “the [c]ourt must view the ndictment's factual allegations as true, and must determine only whether the ndictment is ‘valid on its face.’ ” U.S. v. Campbell, No. 02-80863, 2006 WL 897436, at *2 (E.D.Mich. April 6, 2006) (citing Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956)). Accordingly, the court must resolve factual issues in this case, such as they exist, in favor of the indictment. With this standard in mind, the court turns to an analysis of the defendant's motion.
II. Defendant's RFRA Defenses
The defendant argues that he is exempt from prosecution for possessing and bartering contraband bird parts under the RFRA. That statute provides that the “[g]overnment may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest.” 42 U.S.C. § 2000bb-1(b).FN1 The defendant alleges*692 that his activities involving the feathers hold a religious significance to him, and, though he concedes that the government has a compelling interest in preserving both the birds themselves and the cultures of recognized Indian tribes (which require access to some protected birds), he maintains that the government has not chosen the least restrictive means of furthering those interests. The court disagrees.
FN1. The RFRA was declared unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507, 530-35, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). However, it remains valid as applied to the federal government. See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, ----, 126 S.Ct. 1211, 1216, 163 L.Ed.2d 1017 (Feb. 21, 2006); United States v. Sandia, 188 F.3d 1215, 1217 (10th Cir.1999); Adams v. CIR, 170 F.3d 173, 175 (3d Cir.1999); Alamo v. Clay, 137 F.3d 1366, 1367 (D.C.Cir.1998).
[4] [5] It was Congress' intention, in enacting the RFRA, to restore the compelling interest test long applied by the Supreme Court when interpreting the Free Exercise Clause of the First Amendment to the Constitution- see, e.g., Sherbert v. Verner, 374 U.S. 398, 405, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)-and abandoned by the Court in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). See In re The Grand Jury Empaneling, 171 F.3d 826, 829 (3rd Cir.1999) (In the RFRA, Congress attempted “to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder.”). Under the RFRA, as in the compelling interest test, the defendant bears the initial burden to demonstrate a sincere religious belief that has been substantially burdened by the state. U.S. v. Meyers, 95 F.3d 1475, 1483 (10th Cir.1996) (citing Yoder, 406 U.S. at 215, 92 S.Ct. 1526) (beliefs that are “philosophical and personal rather than religious ... [do] not rise to the demands of the Religion Clauses”). Once the defendant has made that showing, the burden shifts to the state to demonstrate that the challenged regulation furthers a compelling state interest by the least restrictive means. Adams, 170 F.3d at 175; Jolly v. Coughlin, 76 F.3d 468, 478 (2d Cir.1996).
A. Defendant's Standing to Challenge the MBTA
[6] Before performing the burden shifting analysis described above, the court must address a standing issue. The United States argues that the defendant does not have standing to challenge the regulations implementing the MBTA because, under those regulations, the defendant could have applied for a permit to possess migratory bird parts but did not do so. Indeed, courts have not typically allowed defendants to make collateral challenges to regulatory statutes where the defendant inexplicably failed to apply for a permit to perform the activity in question. Madsen v. Boise State University, 976 F.2d 1219, 1221 (9th Cir.1992) (“[A] plaintiff lacks standing to challenge a rule or policy to which he has not submitted himself by actually applying for the desired benefit.”); see also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-71, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) (plaintiff who had never applied for membership lacked standing to challenge fraternal organization's discriminatory membership policies); Lehon v. City of Atlanta, 242 U.S. 53, 56, 37 S.Ct. 70, 61 L.Ed. 145 (1916) (non-resident who never applied for permit lacked standing to challenge licensing ordinance on ground that city officials discriminate in favor of residents in awarding licenses); Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 56 (D.C.Cir.1991) (plaintiffs lacked standing to challenge failure to extend Indian hiring preferences into job categories for which *693 they never formally applied); Oil, Chemical & Atomic Workers Int'l Union v. Gillette Co., 905 F.2d 1176, 1177 (8th Cir.1990) (employee who has not filed benefits claim lacks standing to challenge employer's retirement policy); Doe v. Blum, 729 F.2d 186, 189-90 (2d Cir.1984) (plaintiffs who never requested family planning services may not challenge Medicaid distribution procedures); Brown v. Sibley, 650 F.2d 760, 770-71 (5th Cir. Unit A Jul.1981) (plaintiffs who had never participated in or been excluded from program receiving federal funding lacked standing to challenge its compliance with Rehabilitation Act); Jackson v. Dukakis, 526 F.2d 64, 65-66 (1st Cir.1975) (plaintiff who did not apply for employment with state agencies lacks standing to allege discriminatory hiring practices); Interstate Commerce Comm'n v. Appleyard, 513 F.2d 575, 577 (4th Cir.1975) (trucker who has never applied for ICC transportation permit has “suffered no legally cognizable injury” from policy), cert. denied, 423 U.S. 840, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975).
This standing requirement “serves the salutary objective of ensuring that only those individuals who cannot resolve their disputes without judicial intervention wind up in court,” Madsen, 976 F.2d at 1221, for, as the United States argues, the court has no way to know whether the defendant could have been granted a “special purpose” permit under 50 C.F.R. § 21.27 without his having applied for one. In the event that the defendant were granted such a permit and could legally possess migratory bird feathers, the MBTA could not be said to burden his religious use of the feathers. See, e.g., East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 227 (6th Cir.1995) (holding that the plaintiffs lacked standing to challenge a permit provision without showing that they would have been ineligible to obtain a permit).
In similar challenges to federal bird feather regulations, courts have addressed the standing issue consistently with the above approach. In United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir.1997), the court held that the defendant-a member of a federally recognized Indian tribe-did not have standing to challenge BGEPA as it applied to him personally, because he could have applied for a permit to possess the bird parts legally but did not do so. Reasoning that “failure to apply for a permit precludes challenge to the manner in which the Act is administered,” the court held that the defendant could challenge only the “facial validity of the BGEPA and its regulations” and not “the operation of the underlying administrative scheme.” Id, see also U.S. v. Lundquist, 932 F.Supp. 1237, 1242 n. 4 (D.Or.1996) (holding that the defendant “has no standing to challenge the alleged imperfections of the permit process because he has never applied for a permit”); United States v. Thirty Eight Golden Eagles or Eagle Parts, 649 F.Supp. 269, 277 (D.Nev.1986) (holding that the defendant could challenge only the “facial validity of the Act” and not “the manner in which the Act is administered” where the defendant had “not applied for a relevant permit”).
-
[7] In United States v. Hardman, 297 F.3d 1116, 1121 (10th Cir.2002), the court held that the defendants did have standing to challenge the regulatory scheme at issue because applying for permits would have been futile. In Hardman, the defendants challenged only the BGEPA, which does not allow non-members of federally recognized tribes to apply for permits, and not the MBTA, which does allow for such permits. Id. at 1120-21. As in Hardman, Winddancer does have standing to challenge the regulations administering the BGEPA because-for the same reasons as in Hardman-applying for a BGEPA permit*694 would have been futile for Winddancer. However, Winddancer does not have standing to challenge the manner in which the MBTA has been administered against him, because applying for a permit under the MBTA would not have been clearly futile. Id., see also United States v. Gonzales, 957 F.Supp. 1225, 1227 (D.N.M.1997) (“permitting the defendant to mount a challenge to the permit process without having applied for a permit only where the defendant challenged the fact of the application process itself”).
Having established that Winddancer can mount only a “facial” challenge to the MBTA, it is necessary to define how exactly that “facial” challenge differs from an “as applied” challenge.FN2 The Supreme Court has held that a facial challenge requires a showing that “no set of circumstances exists under which the Act [in question] would be valid.” Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (O'Connor, J., concurring) (quoting Webster v. Reproductive Health Services, 492 U.S. 490, 524, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989)); see also U.S. v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”). Therefore, in order to demonstrate that the MBTA is facially invalid, the defendant would have to show that it is not capable of being applied without violating the RFRA.
FN2. The court will assume, in accordance with other federal courts to address this issue, that the RFRA-which creates statutory, and not Constitutional rights-can be called upon to mount both “facial” and “as applied” challenges to federal legislation. Hugs, 109 F.3d at 1378.
[8] The defendant has not shown, nor has he even alleged, that the MBTA is incapable of application without violating religious rights guaranteed by the RFRA. Instead, the defendant challenges a specific facet of its application-the “Morton Policy”-under which members of federally recognized Indian Tribes are not subject to the Act. The defendant does not allege that the MBTA cannot be constitutionally enforced but rather that the “Morton Policy” should be expanded, ever so slightly, to include religious practitioners such as himself. Therefore, the defendant's MBTA challenge must fail.FN3
FN3. The defendant has not invoked the “overbreadth doctrine” in order to circumvent the standing requirement for the MBTA challenge, and for good reason. Because the defendant's challenge arises under the RFRA, and not the First Amendment, the “overbreadth doctrine” may not be invoked to expand review of the MBTA. See Coleman v. DeWitt, 282 F.3d 908, 914 (6th Cir.2002) (“Neither the Supreme Court nor this court has applied the overbreadth doctrine when the First Amendment was not implicated.”); Salerno, 481 U.S. at 745, 107 S.Ct. 2095 (“We have not recognized an overbreadth doctrine outside the limited context of the First Amendment.”).
B. Defendant's Challenge to the BGEPA
Because it would have been futile for the defendant to apply for a permit under the BGEPA, the court now turns to analyze the defendant's RFRA challenge to his prosecution under that statute. Hugs, 109 F.3d at 1378.
1. A Sincere Exercise of Religion
[9] The defendant bears the initial burden of demonstrating that the regulations at issue substantially burden a sincere religious belief. Yoder, 406 U.S. at 215, 92 S.Ct. 1526 (beliefs that are “philosophical and personal rather than religious ... [do] not rise to the demands of the Religion *695 Clauses”). Although the defendant has shown that the BGEPA substantially burdens his ability to possess eagle feathers-under BGEPA, he may not possess them-he has not shown that his desire to possess the feathers arises from a sincere religious belief.
The defendant has identified at least some Native American ancestry on both sides of his genealogy. According to the defendant, his father had Cherokee ancestry, and his mother Nanticoke ancestry. (Docket No. 30 at p. 2-3.) In addition, he alleges to have been formally admitted as an associate member to the Nanticoke tribe (which is not federally recognized), and to have been adopted by a Lakota family. (Id.) He is not a member of the Lakota tribe, however, or the Cherokee tribe. (Id.) According to the materials attached to the defendant's brief, the Nanticoke people are indigenous to Delaware. (Docket No. 30, Ex. 2.) The Cherokee tribe and Lakota tribe are each, respectively, located in different geographic areas. The people of these tribes each practice their own religions; however, the defendant does not identify which of them, if any, he practices. Rather, he alleges to be a “sincere adherent to a bona fide Native American religion,” and that he “exercises that religion through sacred dances.” (Docket No. 30 at p. 3.) The defendant does not support that allegation with any documents or affidavits, nor does he identify to which specific Native American religion he adheres. Therefore, he has not met his initial burden under the RFRA to demonstrate that his possession of eagle feathers arises from a sincere religious belief, and not a cultural or philosophical expression. See, e.g., Diaz v. Collins, 114 F.3d 69, 72 (5th Cir.1997) (defendant bears the burden of demonstrating a substantial burden to a sincere religious belief).
2. The Least Restrictive Means
[10] Even if the defendant had met his initial burden, the court could not grant his motion to dismiss indictment because the United States has shown that the regulations implementing the BGEPA further a compelling government interest by the least restrictive means. Because neither party disputes that the regulations implementing the BGEPA further two compelling government interests, which are actually at odds-the preservation of bald and golden eagles, and the preservation of federally recognized Indian tribes-the only issue is whether or not the regulations further those goals by the least restrictive means. The court finds that they do.
As noted, the defendant does not dispute the government's compelling interest in supporting bald and golden eagle populations. Instead, the defendant argues that the government's restrictions are unduly burdensome, because it can meet its interest simply by enforcing laws banning eagle poaching. (Docket No. 30 at p. 32.) That is, by legalizing possession of eagle parts, but maintaining the federal repository as the sole legal means of access to them, the defendant argues that the United States can protect bald and golden eagles without burdening his religious use of feathers. The United States has shown, however, that it cannot serve its interest in protecting eagles solely through anti-poaching laws, because it cannot enforce anti-poaching laws without restricting possession of eagle parts. To illustrate, the government has submitted numerous affidavits from the Department of Interior, including an affidavit from Lucinda D. Schroeder, a Special Agent with the U.S. Fish and Wildlife Service, which states:
The fact that the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act both contain possession prohibitions, and not just prohibitions *696 against killing the birds, is significant for law enforcement efforts. This is because there is no reasonable forensic method by which law enforcement can determine if a bird was accidentally or intentionally killed, killed a hundred years ago, or killed yesterday. (Docket No. 38, Ex. 2 at ¶ 8.)
That is, the government cannot enforce its eagle protection laws without banning possession, at least to some degree, because of the low probability of discovering poachers in the act. ( See Affidavit of Edgardo O. Espinoza, Docket No. 38, Ex. 3 at ¶ 4) (“There is no scientific test currently available that could determine whether the part came from the Repository or any other source.”). The situation with regard to bald and golden eagle feathers is similar to other crimes, such as child pornography, where it is difficult to prove the underlying illegal act once the item is reduced to possession. 18 U.S.C. § 2252(a)(4)(B).
One reason why enforcement of the poaching ban presents such difficulties is the existence of an extensive black market for bald and golden eagle parts, which is driven primarily by the money prizes offered at pow-wow dancing competitions. (Affidavit of Douglas Goessman, Docket No. 38, Ex. 7 at 4-5.) Due to the difficulty in stemming this black market, the government has shown that it is virtually impossible for the Fish and Wildlife Service to protect bald and golden eagles without some ban on possession. ( Id. at 9-10) (“t is my belief, any additional exemptions to the BGEPA, such as having the USFWS ... begin issuing eagle feathers to persons other than Native Americans ... would eventually devastate state, federal and tribal conservation law enforcement efforts to protect bald and golden eagles.”). Prohibiting possession of contraband is often asserted as a valid means of eliminating the fruits of an illegal act. See, e.g. Employment Division, Dept. Of Human Resources of Oregon v. Smith, 494 U.S. 872, 905, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990); Osborne v. Ohio, 495 U.S. 103, 109-110, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990).
In addition, the United States has demonstrated that poaching presents a significant challenge to bald and golden eagles, due to the low reproductive rates of those species. (Affidavit of Jody Gustisus Millar, Docket No. 38, Ex. 10.) Bald eagles, for instance, do not mature until they are between four and six years old and, once they do begin producing young, do so at an average rate of only two per year. ( Id. at ¶ 14.) Due to the low reproductive rates, bald eagle populations rely on a high survival rate for adults, as opposed to a high production of young, to ward off extinction. (Id. at ¶ 15.) If poaching were to increase-due to an increased demand for black market bird parts, which could itself be caused by the loosening of the anti-possession laws-the eagle populations would likely suffer. ( Id. at ¶ 18) (“- n a long-term or widespread basis, unregulated take of mature bald eagles can depress, and potentially endanger the population.”)
It was against this background of enforcement difficulties in the face of a black market in eagle parts-leading to a potential loss in eagle populations-that the Department of Interior sought to fashion a rule which preserves the traditional Native American use of feathers for religious purposes. See United States v. Dion, 476 U.S. 734, 743-44, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986) (“Congress ... considered the special cultural and religious interests of Indians, balanced those needs against the conservation purposes of the statute, and provided a specific, narrow exception....”). The United States and the defendant both agree that protecting the traditional religious customs of federally recognized Indian tribes is a compelling government interest. It was in furtherance*697 of that interest that the Department created the eagle repository system, currently under which Native Americans face a waiting period of up to two years after submitting a request before receiving feathers, depending on the size and nature of the request. The defendant argues that, were he allowed to request eagle parts through the repository system, the wait would not be significantly lengthened, and therefore, that the BGEPA regulations are not narrowly tailored. However, the court finds that the defendant takes too narrow a view of the situation.
The Department of Interior cannot limit access to the eagle repository to “sincere adherents of Native American Religions” as the defendant suggests. Such a rule would violate the Establishment Clause. See Rice v. Cayetano, 528 U.S. 495, 514-17, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000). If the eagle repository is to be opened up to all sincere adherents of Native American Religions, it must be opened up to all sincere adherents of all religions. Id. As the United States has shown, that could end up being a significant number of people, which would severely limit Native Americans' access to feathers through the repository system.FN4 It would also, as highlighted above, create enforcement problems. Before arresting any person for illegal possession of eagle feathers, federal agents would be forced to determine, on a case-by-case basis, whether the eagle feathers were indeed a necessary part of that individual's religious practice. (Docket No. 38, Ex. 2 at ¶ 13.) That is an untenable situation. (Id.) (“t is virtually impossible as a practical matter to challenge an individual's assertion that he holds a sincere religious belief that requires the use of eagle feathers or other parts.”)
FN4. For instance, the members of the Wiccan and Santeria religions would likely require feathers. (Docket No. 38, Ex. 14 at ¶ 4; Ex. 15 at ¶ 6 “t would be impossible to handle the number of eagle feather permits if virtually anyone could apply for this type of permit without increased staff and major funding.”). In particular, the Santeria religion involves a sacrifice to Osain, an “extremely important deity” who requires a “ritual preparation [which] consists in preparing a gourd which ideally should contain up to 101 heads of different birds. Selected feathers of various birds contained in Osain's [gourd] are: owl, EAGLE, turkey, vulture, hawks, parrots, canaries, etc. Again, the feathers and/or the heads of the birds symbolize the powers of Osain as the Orisha of the woods and all the magical herbs and roots contained therein.” (Docket No. 38, Ex. 18 at p. 5).
By predicating participation in the eagle repository on an ostensibly political categorization, and not a religious one, the Department of Interior deftly side-stepped the Establishment Clause and struck a careful balance between eagle preservation, and the preservation of Native American cultures. Were this category to be nullified, and the ban on eagle possession for non-official tribe-members lifted, it is possible that both government concerns would be thwarted-that is, both eagle populations and Native American cultures would suffer.
In United States v. Antoine, 318 F.3d 919, 922-23 (9th Cir.2003), the Ninth Circuit Court of Appeals addressed whether or not the BGEPA violated the RFRA by barring non-members of federally recognized Indian tribes from accessing eagle feathers-the very issue we address today. In Antoine, the court recognized that, since the government had a compelling interest in protecting eagle populations to some degree, and because those populations are finite, “the burden on religion is inescapable; the only question is who to burden and how much.” Id. at 923. In Antoine, as in this case, the defendant sought “to burden other people's religion more and his religion less,” but as the *698 Ninth Circuit pointed out, “[t]his is not a viable RFRA claim; an alternative can't fairly be called ‘less restrictive’ if it places additional burdens on other believers.” Id., see also United States v. Hugs, 109 F.3d 1375, 1379 (9th Cir.1997) (holding that the BGEPA permit scheme did not violate the RFRA); U.S. v. Sandia, 188 F.3d 1215, 1218 (holding that the defendant's prosecution for selling protected eagles under the BGEPA did not violate the RFRA); but see United States v. Hardman, 297 F.3d 1116, 1135 (10th Cir.2002) (holding that the factual record did not, at the time, support a ruling on the RFRA issue).
The BGEPA regulations strike a delicate balance. Were the BGEPA to simply ban possession for all persons, the government would have succeeded in protecting eagle parts, but failed to protect Native American culture. Were the BGEPA to allow all persons to possess the eagle parts for any religious use, it would create severe difficulties in enforcing poaching laws, because it is (1) very rare to catch poachers in the act of poaching, and (2) nearly impossible to determine whether the birds were poached or not, when confiscated. Not only would the waiting period swell, making it difficult for the recognized tribes to use birds for their ceremonies, but the black market would also increase, since more people would be able to possess eagle feathers-legally or illegally procured-without fear of prosecution. In the long run, eagle populations would suffer. In the ensuing eagle scarcity, the government would have failed at both of its objectives.
In forming its categorization on a political basis, the government has balanced its two competing objectives in the only way this court has been shown to be possible. By limiting the number of people who can possess the feathers, the government succeeds in limiting the potential customers for the black market in eagle feathers. It also keeps the waiting period for the eagle repository low. By granting access to the feathers only to members of the officially recognized tribes, the government protects those tribes in the only way possible under the Establishment Clause. The government has met its burden in showing that the regulations further a compelling government interest by the least restrictive means.
II. Defendant's Alternative Defenses Under the MBTA
Alternatively to his RFRA defenses, the defendant claims that he has not been properly charged under the MBTA because he did not actually “barter” or “possess” the contraband migratory bird feathers, as those terms are used in that statute. The court disagrees and finds that he was properly charged under the MBTA.
A. Bartering Migratory Bird Feathers
[11] The defendant alleges that a feather-to-feather exchange cannot be considered “bartering” because that term requires a transfer of dissimilar objects-accordingly, feathers are too similar to each other to be bartered. (Docket No. 30 at p. 29-30.) The defendant cites Merriam-Webster's entry for “barter”-“to trade by exchanging one commodity for another,” Merriam-Webster's Collegiate Dictionary 94 (10th Ed.2002)-and on its basis declares that, because feathers are the same “commodity,” they cannot be properly “bartered.” That is nonsense. A person can barter one type of car for another type, a bologna sandwich for a turkey sandwich, and as equally, one type of illegal feather for another type of illegal feather. To illustrate, horse trading, which is by definition the trade of one type *699 of animal for the same type, is a longstanding form of barter, under which one commodity-a horse-is traded for another commodity-a horse. People have found it worthwhile to trade horses, cars, and sandwiches, because of the individual differences within each type of commodity. Likewise, the defendant presumably found it worthwhile to barter feathers because of the inherent differences between the various types of feathers in the market. Significantly, Merriam-Webster does not define “barter” as trading “one commodity for a wholly different type of commodity,” but rather “exchanging one commodity for another.” The defendant traded several commodities-feathers-for other commodities-also feathers-and his action falls under his own proposed definition.FN5 Because his alleged “bartering” falls under the clear language of the criminal statute, we need not address the purpose of that statute at this stage. Costello v. United States, 350 U.S. at 363, 76 S.Ct. 406.
FN5. The United States, in its Response, offers a host of useful alternative definitions for the term “barter,” but the court finds the defendant's own proposed definition sufficient to encompass the defendant's alleged activities.
B. Possession of Migratory Bird Feathers
[12] The defendant argues that he was improperly charged with “possessing” migratory bird feathers because that term only refers to possessing “in a way that either harmed migratory birds or exploited harm done to them.” (Docket No. 30 at p. 31.) Assuming that the MBTA should be interpreted as applying only “to activities that are intended to harm birds or to exploit harm to birds, such as hunting and trapping, and trafficking in birds and bird parts,” Mahler v. United States Forest Service, 927 F.Supp. 1559, 1579 (S.D.Ind.1996) (emphasis added), the defendant's alleged conduct falls within that interpretation.
The defendant is not charged with merely possessing the feathers but, as discussed above, with both possessing and trading, or “bartering,” them for other feathers. The defendant did not come to possess all of his feathers accidently by “picking up road kill,” (Docket No. 30 at p. 33), but rather possessed them, purposefully, for use in pow-wow dances, in direct contravention of the law. As the United States points out, the defendant's transfer of the feathers may fall directly under the conduct proposed, in Mahler, as being harmful to bird populations. 927 F.Supp. at 1579. As to whether or not the government has proven the defendant's guilt under the MBTA, the motion to dismiss stage is not the proper place for such inquiry. U.S. v. Jones, 2006 WL 399234, at *1 (“[A] motion to dismiss should be denied if it requires a pretrial test of the government's evidence.”). However, in as much as the defendant is charged with both possession and bartering the feathers, the court finds that he was properly charged under the MBTA.
III. Defendant's “Outrageous Conduct” Challenge
[13] Finally, the court turns to address the defendant's contention that his prosecution should be dismissed due to outrageous government conduct. The defendant alleges that the conduct of the undercover agent in this case was so outrageous as to violate the Fifth Amendment's guarantee of fundamental fairness. Fundamental fairness relates to the Due Process clause of the Fifth Amendment. Hampton v. United States, 425 U.S. 484, 495, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Brown, 635 F.2d 1207, 1212 (6th Cir.1980). In Hampton, a plurality*700 of the United States Supreme Court speculated that some police conduct might be so egregious as to violate the accused's due process rights without implicating any specific doctrine, but noted that “[p]olice overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.” Hampton, 425 U.S. at 495, n. 7, 96 S.Ct. 1646.
Since Hampton, the Sixth Circuit Court of Appeals has debated whether an “outrageous conduct” defense even exists. In U.S. v. Barger, 931 F.2d 359, 363 (6th Cir.1991), the Sixth Circuit articulated four factors for use in determining outrageous government conduct: “(1) the need for the police conduct as shown by the type of criminal activity involved, (2) the impetus for the scheme or whether the criminal enterprise preexisted the police involvement, (3) the control the government exerted over the criminal enterprise, and (4) the impact of the police activity on the commission of the crime.” See also United States v. Robinson, 763 F.2d 778 (6th Cir.1985). In applying those factors, the Barger court did not find “outrageous conduct” where government agents hired a Hell's Angel to travel from city to city, spending $150,000 of government money in order to incite other Hell's Angels to retaliate against another motorcycle gang with violence. Barger, 931 F.2d at 363; see also United States v. Norton, 700 F.2d 1072, 1075 (6th Cir.1983) (finding no outrageous conduct occurred where a federal agent joined the Ku Klux Klan and actively participated in the planning and execution of a bombing operation).
In United States v. Tucker, 28 F.3d 1420, 1426 (6th Cir.1994), the court observed that, “in more than two dozen cases ... this circuit has rejected ‘on the facts' every attempt to invoke the so-called ‘due process' defense.” Noting that the doctrine had never actually been applied by either the Supreme Court or the Sixth Circuit, the Tucker court held that it was “not required to recognize the ‘due process' defense.” Id. at 1427. In addition, the court listed “three strong reasons for concluding that such a defense simply does not exist.” Id. Of particular interest, the court reasoned that inducement, “outrageous” or not, does not fall under the purview of the Fifth Amendment, but rather the statutory entrapment defense. Id. The court reasoned that because the legislative branch had already fashioned an “inducement” defense predicated on the defendant's intention, it would violate the separation of powers for the judicial branch to substitute its own doctrine predicated on the “outrageousness” of the government's actions. Id. at 1428. Therefore, the court held that the defendant would be limited to the defense of entrapment as defined by congressional statute. Id., see also Barbee v. Wal-Mart Stores, Inc., No. 01-2228 GBRE, 2002 WL 1784318 at *2 (W.D.Tenn. Jul.16, 2002) (“[A]llegations of entrapment alone do not support a due process claim.”).
It is far from certain under Sixth Circuit precedent whether or not an “outrageous conduct” defense exists in this jurisdiction. Even were it to exist, under Barger and Norton, we could not apply that doctrine in this case. The agent in this case did not incite Winddancer to violence, nor did he participate in any bombing campaigns. Rather, here is the story as presented. A Fish and Wildlife Service agent, Buddy Shapp, contacted Winddancer, claiming to be a member of a federally recognized Indian tribe. (Docket No. 30 at p. 4.) Buddy Shapp claimed to be in need of feathers to perform a tribute dance for his dead father. Winddancer agreed to perform a trade. The two performed trades on two successive days. During the second trade, Shapp told Winddancer he thought some of his own feathers had been *701 poached, but the information did not deter Winddancer from performing the trade. After Shapp left on the second day, agents arrived at Winddancer's trailer and performed a search.
In short, an undercover agent proposed to Winddancer that they barter feathers, presenting himself as a sympathetic feather afficionado, and Winddancer agreed to do so. In light of the difficulties outlined above in enforcing the MBTA and the BGEPA, and in light of the severity of the conduct that the Sixth Circuit has determined was not “outrageous” in prior cases, the conduct alleged by Winddancer in this case cannot give rise to an “outrageous conduct” defense.
CONCLUSION
For the reasons stated herein, defendant Winddancer's Motion to Dismiss Indictment will be denied.
An appropriate order will enter.
M.D.Tenn.,2006.
U.S. v. Winddancer 435 F.Supp.2d 687
________________________________________
Judges and Attorneys (Back to top)
Judges | Attorneys
Judges
• Trauger, Hon. Aleta Arthur
United States District Court, Middle Tennessee
Nashville, Tennessee 37203
Litigation History Report | Judicial Motion Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler
________________________________________
Attorneys
Attorneys for Defendant
• Alpert, Caryll S.
Nashville, Tennessee 37203
Litigation History Report | Profiler
• Hodde, Kimberly S.
Nashville, Tennessee 37203
Litigation History Report | Profiler
Attorneys for Plaintiff
• Colbourn, L. Elinor
Washington, District of Columbia 20044
Litigation History Report | Profiler
• Jones, Byron M.
Nashville, Tennessee 37203
Litigation History Report | Profiler
END OF DOCUMENT
-
Tami is ed's latest fiance and since ed went to court it is now PUBLIC RECORD that ed is not Native and sold feathers to undercover agents on 2 yes TWO separate occasions.
=====================================================================================
Because Winddancer is not a member of a federally recognized Native American tribe, the Indictment
charges that he has violated the Bald and Golden Eagle Protection Act (“BGEPA”),
16 U.S.C. § 668(a)
, and the Migratory Bird Treaty Act (“MBTA”),
16 U.S.C. § 703, by possessing the feathers. On July
20, 2005, Winddancer traded feathers with an undercover agent for the U.S. Fish and Wildlife Service.
The agent and Winddancer *690 traded feathers on two successive days, after which two other Fish and
Wildlife agents searched Winddancer's motor home, finding many contraband feathers. (Docket No. 30.)
Winddancer was subsequently indicted on six charges: (1) possession, bartering, and offering to barter
eagle feathers on July 20, 2005, in violation of the BGEPA; (2) possession, bartering, and offering to
barter eagle feathers on July 21, 2005, in violation of the BGEPA; (3) possession, bartering, and offering
to barter migratory bird feathers on July 20, 2005, in violation of the MBTA; (4) possession, bartering,
and offering to barter migratory bird feathers on July 21, 2005, in violation of the MBTA; (5) selling and
receiving contraband wildlife in excess of $350 on July 20, 2005, in violation of both the BGEPA and the
MBTA; and (6) selling and receiving contraband wildlife in excess of $350 on July 21, 2005, in violation
of both the BGEPA and MBTA. In addition, the United States seek forfeiture of Winddancer's collection
of contraband feathers and parts, as well as his motor home, for its use in possessing and selling the items.
(Docket No. 22).
*****This shows that recieved money in excess of $350.00 for the feathers *****
-
Hi Sal. We like to keep things neat and tidy here. We would appreciate it if in the future you need to make multiple posts on people that you do so in the original thread rather than making bunches of new ones for each post. Thanks :)
-
Thanks, I did try originally but kept getting an error message. Thanks
-
More news on Edward Pielart AKA Winddancer - Genealogist have confirmed Ed is a fourth generation GERMAN on his father's side. On his Mother side Ruth, Ed is a third generation from POLAND. Since ed's ancestors IMMIGRATED to America this provides proof that Ed is not Native to America, which is an odd mix since the Germans killed many Polish people in the World War 2.
The US Gov't release of census records and the use of the Freedom of Information act has basically outed every Wannabe!
-
I used the Freedom of Information Act to obtain the actual court records that PROVE Ed Winddancer changed his name from Edward Pielart. His wife at the time also changed her name to Winddancer also. Maybe Ed is ashamed of his German, Polish decent. Yes Mr Pielarts parents father German and Mother Polish. I also did see Mr. Pielart divorced his wife in '95 maybe she was tired of lying?
-
Well know NDN Exploiter and White Man Ed Winddancer was named head man at a powwow this Thanksgiving. I contacted the powwow organizer and asked why he would allow a White Man that legally changed his name to make his false claims of being an NDN seem more believable and the fact that he was found guilty and convicted of selling Eagle Feathers. The organizer Veterans of Foreign Wars (VFW) obviously is more concerned about money that having an authentic event! I started to post the facts about Ed Windancer not being an NDN and I was immediately blocked and my post were immediately deleted. Please avoid this "Powwow" it is insulting that a White Man will lead around actual NDNS at an NDN Event! Please share with all your friends and contact this VFW and see why they are more concerned about money than authenticity? Unless they simply do NOT care! Ed Winddancer was outed here many years ago and the proof is still here at NAFPS just search his name. Again, Avoid this event and share with all your friends and ask that they do not attend this event also. White Horse - American Indian Movement (AIM Florida.
Facebook link: https://www.facebook.com/VFW-Veterans-Village-Powwow-1936564366577277/
VFW Home Link, this event does NOT appear on their calander page? http://vfwveteransvillage.org/
I was unable to post this in Frauds, could this post be moved to that section?
-
Dave "White Wolf" Trzeciak is the organizer of the event and claims to be a member of the Yamassee Seminole Nation, they are listed as Extinct as a tribe.
-
Ed Winddancer was outed here many years ago and the proof is still here at NAFPS just search his name.
This is the thread about Ed WindDancer: http://www.newagefraud.org/smf/index.php?topic=1609.0
I wonder if this update rather should have been posted in that thread?
-
Please visit his website at www.edwinddancer.com … […] … Winddancer (http://www.edwinddancer.com/ …
That website is now defunct. His claim about "Growing up as an American Indian …", etc. is still here:
Ed WindDancer • Native Traditional Dancer and Flutist
Growing up as an American Indian of Nanticoke Cherokee descent, I was taught in the old ways of caring for the Earth and honoring all living things; to be a keen observer of life and spirit. When I am dancing for you I share with you a very personal part of my heritage and my feelings of elation. My traditional cultural upbringing is beautifully portrayed as I dance and share my music with you, conveying to my audience, whether at public schools and colleges, community groups, Pow Wows, or for television viewers, the power, depth, and magnificence of the Native American Culture. The dance heals me and those who experience it. When you attend my performances you will be taken on a memorable journey into the spiritual and physical foundation of each dance.
In addition to a variety of traditional dances my presentations are rich in oral history and folklore. I recently enjoyed a successful dance tour in England and Germany and am now looking forward to programs in the United States, as well as an upcoming tour to Japan. My native flute music has been included in my performances. Whether performing in the United States or abroad, I look forward to creating an event for you that will be a powerful and rewarding experience in your community.
Come with me in the Spirit of my ancestors; enter this sacred circle and feel the power of our ancient songs —Ed WindDancer
(https://dwij.org/Images/winddancer2.jpg)
-
Excerpt from a new thread titled "White Man named Head Man at a Powwow - Avoid!":
Well know NDN Exploiter and White Man Ed Winddancer was named head man at a powwow this Thanksgiving. I contacted the powwow organizer and asked why he would allow a White Man that legally changed his name to make his false claims of being an NDN seem more believable and the fact that he was found guilty and convicted of selling Eagle Feathers. The organizer Veterans of Foreign Wars (VFW) obviously is more concerned about money that having an authentic event! I started to post the facts about Ed Windancer not being an NDN and I was immediately blocked and my post were immediately deleted. Please avoid this "Powwow" it is insulting that a White Man will lead around actual NDNS at an NDN Event! Please share with all your friends and contact this VFW and see why they are more concerned about money than authenticity? Unless they simply do NOT care! Ed Winddancer was outed here many years ago and the proof is still here at NAFPS just search his name. Again, Avoid this event and share with all your friends and ask that they do not attend this event also. White Horse - American Indian Movement (AIM Florida.
Facebook link: https://www.facebook.com/VFW-Veterans-Village-Powwow-1936564366577277/
-
Sal, does anyone know for certain that Ed is a vet? I mean, he lied about being ndn...
-
This 2012 story of the dispute between White Horse and Ed WindDancer has not been shown here yet?
Indian war: Men feud over Native American heritage
By CHRIS ANDERSON — Posted Jan 27, 2012 at 3:41 PM
Sarasota resident protests at Engelwood man’s tribal performances, calling him an imposter who’s offending an entire people
The notes from the flute flutter away with the wind, and they carry a serene song to Creator above.
No one really knows the man playing so mystically, certainly not the smattering of entranced people watching him at the recent heritage festival in Englewood.
Is the music coming from an authentic Native American intent on representing the truth? Or from an imposter offending an entire people for profit and profile?
His name is Ed Winddancer, a 55-year-old Englewood resident who claims Nanticoke and Cherokee descent, and he is wearing red and black war paint, feathers and a majestic headdress while playing his flute like in a fairy tale.
He also dances and hops within a sacred circle, his blood-curdling screams part of the interpretation, and the children are enraptured by his educational stories.
He has made many such area appearances — at strip malls, schools and summer camps — and to see him, to hear him, is to be mesmerized by him.
Who would question him?
Sal Serbin is a 48-year-old Sarasota resident who does — and quite vehemently. Serbin has Sioux lineage and often protests Winddancer’s appearances with signs that read “Liar” and “Cultural Thief.”
Serbin, who claims his great-grandfather was in the Battle of Little Bighorn in 1876, says some tribal leaders even suggest that he should take “more extreme measures” against Winddancer, with whom he has feuded for a decade.
Millions of people falsely claim to be Native American, Serbin says, doing so for either romanticism or money, which is a violation of federal law. It is a growing problem, he says, and Florida is particularly problematic.
The Sioux, in fact, have even declared war on imposters.
Then what about the mysterious music man, Ed Winddancer, who legally changed his name in 1992? Who is he really, and how can anyone know for sure?
The answers are as complex as his eyes.
They are brown as the barren earth.
Remove his contacts and they are blue.
Protecting tradition
Inside a big shell, next to some deer horns, the sage burns.
Serbin says a prayer and then spreads the sage around with an eagle feather. This is done once a month to purify his home.
If he spots a dead bird while driving his car he will stop and bless it with the tobacco he keeps in his glove box.
He has never found a dead eagle, the highest of the sacred birds, but he has come across hawks and owls. An owl means death in his tribe, and once, after he saw one in the parking garage at Whole Foods, he went home and prayed.
Practicing and protecting native tradition defines Serbin, who has sat in his hot car for hours just to sweat out evil. He fears imposters not only sully his heritage but endanger themselves by trying to carry out ceremonies they do not fully understand.
Like the “Sun Dance,” where a bone is put through a chosen person’s pierced chest. The bone, according to Serbin, is attached to a rope that is tied to a tree. The person moves around until the skin breaks from the bone. It is a ceremony of high honor.
“People are dying from those,” Serbin says. “It just hasn’t gotten a lot of publicity. There’s some in Florida.”
This weekend he is speaking about New Age expropriation of native religious traditions in Clearwater with Dr. Robin Wright of the University of Florida. Serbin documents and keeps photographs of those he suspects are imposters.
On Sunday Serbin will be attending the 5th annual Sarasota Native American Indian Festival at the Sarasota Fairgrounds. The festival, which runs all weekend, is one of the few Serbin claims is legitimate.
It is hosted by Rex Begaye, a full-blooded Navajo and Sarasota resident.
Native Americans from across the country will be performing at the festival, but Winddancer will not be among them.
“We have to give you what’s real,” Begaye says. “That’s what this festival’s all about — what’s real.”
Serbin is an enrolled member of the Assiniboine Tribe (Sioux). His mother was from a reservation in Montana and the family moved to Georgia when he was 4.
He is married with three children, hosts a radio show on WSLR and has lived in Sarasota for the last 13 years. He says he has experienced more racism here than anywhere else.
When his dark hair ran down his back he was often called a “freak.” Actually, per Sioux tradition, that means a person is single. A married person wears their hair in braids.
His hair is short now in honor of his mother, Ella, who died four year ago. And it will stay short.
Ella was also called “White Dove” and before she died she bestowed upon her son the Indian name “White Horse” because he was her knight in shining armor. Rarely do people use their Indian names, he says.
Serbin takes legal classes at State College of Florida, and one day would like to advise tribes. He was recently laid off but says he still spends thousands of dollars traveling the state, protesting people like Ed Winddancer.
“Our ancestors fought and died to preserve and protect our culture, not for these people to wake up one day, put some feathers in their hair and decide to be Indian,” Serbin says. “It would dishonor my ancestors if I didn’t get out there and do something.”
‘Not my keeper’
When it was his turn to explain to the others why he was in this rough Nashville jail holding cell, Ed Winddancer lowered his head, cupped his mouth and whispered almost sheepishly:
“Feathers.”
“You kind of wanted to say, ‘Yeah, I beat up five guys,’” Winddancer says.
In 2005 he was arrested in Tennessee after he traded eagle feathers to an undercover U.S. Fish and Wildlife agent. The government also said he was in possession of 1,000 migratory bird feathers, a huge amount by anyone’s standards.
Winddancer tried to dismiss the charges, saying his rights under the Religious Freedom Restoration Act were violated.
“When they took those feathers away they took away my means of prayer,” Winddancer says. “They are sacred items. They have a life and a spirit and now I’m lost.”
In 2008 he received a $5,000 fine and five years probation.
“To us it’s the worst thing you can do besides committing murder or rape,” Serbin says.
On a pre-sentence report the government listed Winddancer’s race as “Native American,” and this continues to be the major article of proof he uses to show who he is. Serbin shrugs it off.
“You just check a box,” Serbin says. “It means nothing.”
“Who is Sal?” Winddancer asks. “Sal’s not my keeper. Sal’s never proven anything to me who he is.”
Serbin brushes off such remarks.
“I will show anyone my tribal card at any time,” he says. “Or call the tribe. It’s a two-minute phone call.”
“We, as American Indians, are the only people in this country who have to produce an ID card to show race,” Winddancer says to a reporter. “Why do I have to prove to you or anyone else my lineage, or my blood?
“Do I ask that of you?”
Who’s an Indian?
Ed Winddancer was born Edward Arthur Pielert III in Maryland in 1956. In U.S. district court he stated his mother was of Nanticoke descent, his father of Cherokee and his mother raised him alone and to carry forth Nanticoke traditions.
In 1992 he legally changed his name to Ed Winddancer. Serbin thinks he was watching an episode of “Home Improvement” and got it from spotting “Winddancer Productions” in the credits.
“There are things in my family that aren’t too good so I decided to take this name on,” Winddancer says.
Current Nanticoke Chief Herman Robbins says it has never been proved that any of Winddancer’s relatives were regular members of his tribe, going back to at least 1608 when Captain John Smith discovered it. Family has to be documented for full Nanticoke membership. Blood quantity does not matter.
“To make it simple, he’s not Nanticoke,” Robbins says. “But does he have Nanticoke blood in him? He may have. Everyone’s blood is so mixed up these days it’s hard to say.”
Winddancer acknowledged his family was never listed on the Dawes Rolls — a government registry of Native Americans — but said that is not unusual and there could be many plausible explanations.
“The bottom line is if you’re not on the tribal rolls then you’re not one of us,” Serbin says.
“It’s racism,” Winddancer says. “What else would you call it? I’m not Indian enough for Sal? Then it’s an issue of race.
“Go out and ask, ‘How many people have Indian heritage?’ There will be a lot of them. But they’re not members of a tribe. Do you say to those people, ‘You can’t honor your heritage because you’re not a member of a tribe?’”
Says Serbin: “Ed is just one of 10 million people who claim they are Native American. If all these people were actually Native American we would have easily outnumbered the Calvary in the American Indian Wars and this country would have been run by different tribes.”
Winddancer: “He’s saying I’m not native and I’m saying I am. I showed him what the government thought and it wasn’t enough.”
Serbin: “He’s not Indian at all. There is no question of being enough. Either you are or you are not.”
Not backing down
“Flight of the Red Hawk,” a Native American music and dance performance, is scheduled to take place in Venice on March 23.
Winddancer will be the one with the flute; Serbin the one with the sign.
Winddancer sells CDs of his music and charges for performances while stating he is Nanticoke. This, at the least, infuriates Serbin.
According to the Indians Arts and Crafts Act of 1990 it is illegal to sell an art that falsely suggests it is Indian produced. “Indian” is defined as a member of any federally or state recognized tribe.
The Nanticoke are not one of the 565 federally recognized tribes in the U.S., but are state-recognized.
A first-time violation can bring up to a $250,000 fine, five years in prison, or both.
“These people are breaking the law,” Serbin says. “They’re stealing from people. They are committing fraud because they are out there promoting themselves as Native American.”
As expected, Winddancer disagrees.
“Sal sits at his radio station saying what he says, but I’m out there at pow-wows seeing people with mixed blood in them since the Europeans have come over, and they are proud of their heritage,” Winddancer says.
“They’re not backing down from it, and neither am I.”
On the website for the coming event in Venice, Winddancer is depicted in full regalia, including red and white war paint and feathery headdress.
He also holds a flute, thus raising the question:
If the notes reach the sky, does it matter who plays them?
-
There is NO dispute ed winddancer is a fraud and it has been proven many times, it is a shame that he is allowed at some "Native" events that basically allow anyone to show up and that is exactly what they get. Personally I feel bad for the general public that is paying there hard earned money to see a Native event but there are NO actual Natives attending. I am the Executive Director of the American Indian Movement (AIM) Florida and we seek to preserve and protect the American Indian Culture and Traditions and outing a Fraud/con man is one of many things AIM Florida does!
-
BTW since ed "Wannabee" lost his case and appeal from SELLING EAGLE FEATHERS the Fact he is NOT NDN is now Public Record! Visit your local court house and ask where the Law Library is, you can go there and see the actual case for yourself it is FREE unless you want to print off some of the documents there is a charge for printing. But PLEASE go and see for yourself that that man is NOT NDN!!!!!!!!!!!!!!!!
-
New thread started by White Horse with stuff that was already merged into the present topic:
http://www.newagefraud.org/smf/index.php?topic=5252.0 [AVOID this Powwow/event! Please share]
-
New thread started by White Horse with stuff that was already merged into the present topic:
http://www.newagefraud.org/smf/index.php?topic=5252.0 [AVOID this Powwow/event! Please share]
Topic removed. The first post contained exactly the same as White Horse's two posts of August 16, 2018, that were merged into the present thread after I pointed to his first try at a new topic:
Excerpt from a new thread titled "White Man named Head Man at a Powwow - Avoid!":
-
Sparks WHY??? are you defending this exploiter??? Why was my post not moved to Frauds section like I asked it is after all for Events to Avoid! Instead of hiding my post in a previous thread that no one will see?
-
Sparks is not a moderator. I merged the threads, as I already told you in an IM. I also deleted your duplicate post, which was close to spamming. And I didn't see Sparks defending Pielart at all.
Also, the post will show up in search results about the fake powwow. Starting a new thread on the same topic doesn't do much beyond making visitors search more.
-
Topic removed. The first post contained exactly the same as White Horse's two posts of August 16, 2018, that were merged into the present thread after I pointed to his first try at a new topic …
Sparks WHY??? are you defending this exploiter??? Why was my post not moved to Frauds section like I asked it is after all for Events to Avoid! Instead of hiding my post in a previous thread that no one will see?
Sparks is not a moderator. I merged the threads, as I already told you in an IM. I also deleted your duplicate post, which was close to spamming. And I didn't see Sparks defending Pielart at all.
I am sorry I expressed myself too short so that it could be misunderstood to mean that I removed the topic. Because I had posted in the removed thread I was notified in an email that it had been removed. I supposed White Horse had received the same message, so it would be clear to him who removed it. These emails look like this:
AFPS Forum admin@newagefraud.org …
Monday, August 20 …
A topic you are watching has been removed by …
Regards,
The NAFPS Forum Team.
-
These are White Horse's main concerns this August, which he twice tried to post as new topics. I hope new and former readers will respond to these two posts. And I am certainly not defending Ed WindDancer.
Well know NDN Exploiter and White Man Ed Winddancer was named head man at a powwow this Thanksgiving. I contacted the powwow organizer and asked why he would allow a White Man that legally changed his name to make his false claims of being an NDN seem more believable and the fact that he was found guilty and convicted of selling Eagle Feathers. The organizer Veterans of Foreign Wars (VFW) obviously is more concerned about money that having an authentic event! I started to post the facts about Ed Windancer not being an NDN and I was immediately blocked and my post were immediately deleted. Please avoid this "Powwow" it is insulting that a White Man will lead around actual NDNS at an NDN Event! Please share with all your friends and contact this VFW and see why they are more concerned about money than authenticity? Unless they simply do NOT care! Ed Winddancer was outed here many years ago and the proof is still here at NAFPS just search his name. Again, Avoid this event and share with all your friends and ask that they do not attend this event also. White Horse - American Indian Movement (AIM Florida.
Facebook link: https://www.facebook.com/VFW-Veterans-Village-Powwow-1936564366577277/
VFW Home Link, this event does NOT appear on their calander page? http://vfwveteransvillage.org/
Dave "White Wolf" Trzeciak is the organizer of the event and claims to be a member of the Yamassee Seminole Nation, they are listed as Extinct as a tribe.