PENDLEY: A lawman’s license to steal

Agents in the West loath to return seized property

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Eight years ago, on a sunny and clear, but windy and cold day, near Garryowen on the vast prairie of southern Montana an hour north of the Wyoming border, vans full of armed, SWAT-geared federal agents sped down Interstate 80. Garryowen is a private town owned by Christopher Kortlander that features, among other structures, a gas station, a convenience store, a fast-food outlet, an arts and crafts store called the Trading Post, and the Custer Battlefield Museum. The vans skidded to a stop in front of the museum, and agents leapt out as they drew weapons, surrounded and stormed into the museum and held its employees at gunpoint.

The agents were there to serve a warrant and collect evidence for Mr. Kortlander’s alleged illegal sale on eBay of a cavalry uniform button. Mr. Kortlander said he recovered the button on private land, which is legal. However, a Bureau of Land Management agent asserted that, working undercover, he sold Mr. Kortlander the button, which contained a government “microdot” tag secreted on the back. Mr. Kortlander responded that the button was exactly like numerous others in his collection and that he had shipped the tainted button by mistake. He maintains that none of the buttons in his collection was recovered from public or Indian lands. Sale or traffic in archaeological resources from such lands is illegal.

The federal agents were unmoved. Three years and six months later, almost to the day, they stormed the museum again. The agent who filed the 2005 affidavit swore out a new affidavit asserting that while he was in the museum, he saw items containing feathers of bald and golden eagles, the sale of which are illegal, and that based on the testimony of confidential informants, Mr. Kortlander planned to sell these items. More artifacts were seized, including an American Indian war bonnet, headdress, medicine bundle and shield.

Over a period of 4 years, the U.S. Attorney’s Office in Billings, Mont., repeatedly threatened to file criminal charges against Mr. Kortlander, threats sweetened with offers of various plea-bargain options. Mr. Kortlander hired a criminal defense lawyer and fought back as best he could, but the years took a terrible toll financially and emotionally. He feared he would be indicted, suffer through a lengthy criminal trial, and be sentenced to years in federal prison. Courageously, Mr. Kortlander maintained he was innocent and refused to agree to any deal. Incredibly, days later in August 2009, the assistant U.S. attorney wrote that the federal government will “not be seeking prosecution in this case.”In the same letter, the federal government said it was “reviewing” the items seized by the Bureau of Land Management agents to determine “whether they can be legally possessed by [Mr. Kortlander and the museum].” Over time, all but 20 items — those with bald and golden eagle feathers — were returned. The retained items, claims the federal government, were contraband per se because the possession of items containing such feathers is illegal under federal law, and neither Mr. Kortlander nor the museum had the requisite federal permit. Not so, argued Mr. Kortlander and the museum, because the feathers contained in the artifacts predate the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act.No matter, the United States refuses to return the artifacts. It asserts that because Mr. Kortlander has no documentary evidence proving from whom or when he acquired the items — despite his compliance with federal law as to how long he must keep such records — it need not return them. Moreover, the United States maintains that it is not its obligation to prove the artifacts are illegally in the museum’s possession, but the duty of Mr. Kortlander and the museum to prove their rightful ownership. Might, argues the federal government in Montana federal court, makes right.

William Perry Pendley, a lawyer, is president of Mountain States Legal Foundation in Denver.

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