4/25/2003

Owl Feathers: A Rutherford Case History

By David McNair

Alongside a rural Virginia highway in 1995, Diane Raven Shadow and Tim Wind Horse Horen sat huddled on the grass around the corpse of a dead owl. With the sound of highway traffic rushing by, they closed their eyes and thanked the Creator and Mother Earth for the gift they had received. They spoke to the owl and offered him tobacco and smudged his remains with sage smoke as a sign of respect. Diane then carefully removed several feathers from the bird’s wings and tucked them into a leather pouch while Tim dug a small grave. After the owl was buried, they smudged the grass and bushes around the gravesite with sage smoke and again thanked the Creator and Mother Earth by offering them both tobacco.

No, Diane and Tim Horen weren’t crazy. They were descendents of the Iroquois Indians, and this was part of a Native American ceremony to acquire sacred owl feathers.

The Horen’s took great care to respect the remains of the owl—an especially powerful and sacred bird to the Iroquois. In fact, the Iroquois religion prohibits the killing of such birds, which was why the Horens stopped by the side of the road when they saw the owl. Only found owl feathers can be used. They believe owls to be messengers of death, blessings, and other life-changing events. Their feathers are believed to carry Iroquois prayers closer to the Creator and possess great healing powers. As a Medicine Keeper registered with the Southeastern Cherokee Confederacy, Diane Horen adorned prayer rattles and dream catchers with the feathers and used them at home in healing ceremonies to ward off sickness and bad spirits.

Unfortunately, the owl feathers did not ward off the Virginia Department of Game and Inland Fisheries (VDGIF). Responding to complaints from neighbors that the Horens were collecting wild animal parts, the agents wanted to gain access to the house so they could look around and gather evidence before asking for a warrant. In a sting operation not unlike those used to bring down drug dealers and mob bosses, VDGIF agents wore wires and pretended to be locals interested in buying owl feathers and one of the wolf puppies that the Horens raised on their property in Waynesboro, Virginia. There was plenty to see.

The Horen house was a cornucopia of Native American religious items, and Diane Horen very graciously explained to the men that she was an Iroquois Medicine Keeper and that the items were used in various Iroquois religious ceremonies. Hoping to expose the Horens as frauds, one of the agents told Diane Horen that his wife was interested in owl feathers, and asked if she would be willing to sell them. But Diane Horen refused to sell the feathers, explaining to the agents again that she was an Iroquois Medicine Keeper and that the feathers were sacred. However, she did offer to teach the agent’s wife about how the feathers were used.

A day later, uniformed officers served the Horens a warrant and seized a tin of herbs, a medicine wheel, a dream catcher, personal staffs, owl wings, a prayer rattle, a home shield, a personal shield, various bird feathers, and charged the Horens with violating a Virginia code prohibiting the possession of wild animal parts. Oddly enough, Diane Horen was on the phone with Gail Dark Wind, the Chief of the Otter Band tribe, and she tried to get the officer to talk to him on the phone so he could explain the religious significance of the items they were taking. One of the officers took the phone and spoke to Gail Dark Wind who said in written testimony that he could hear small children in the background and could tell that both Diane and the children were frightened. He tried to explain that Diane was a Medicine Woman for the Otter Band and that collecting owl feathers and respecting the fallen bird were sacred rituals, but the officer said, “that doesn’t concern me.” When Gail Dark Wind asked to speak with Diane again the officer told him he could not. "I felt like my home had been raped," Diane later told lawyers for The Rutherford Institute, which subsequently agreed to fight the charges against them and to defend their right to religious freedom. "The items they took have hurt my relationships with my family, my tribe, and the Creator. I can’t get a permit to own feathers because I’m not a member of a federally recognized tribe…but that’s because there are only 120 people in the entire United States who are recognized because the government refuses to officially recognize members of tribes that did not sign treaties with the United States."

During the Horens’ attempt to have the case dismissed, the State of Virginia refused to allow them to explain the religious significance of the seized items, calling it a plain code violation, and saying it had nothing to do with First Amendment rights. The court agreed. At the Horens’ jury trial, the state again refused to allow them to testify about how or why the religious items seized were significant. The jury convicted them, and as a result, the Horens could not lawfully possess what they needed to practice their religion. As the Horens told Rutherford attorney Jim Knicely when he visited them at their home in Waynesboro, "The court’s ruling has basically made it impossible for us to practice our religion."

Immediately, Knicely and The Rutherford Institute went to work filing an appeal of their conviction. In his argument, Knicely cited the First Amendment, and argued that the conviction unfairly burdened the Horens’ free exercise of religion. He also said the court should have allowed the Horens to explain how and why they used bird feathers and should have suppressed the evidence gathered in a warrentless search by the undercover VDGIF agents. In addition, Knicely and The Rutherford Institute maintained that the conviction violated the Horens’ rights under the The Religious Freedom and Restoration Act (RFRA) of 1993. Under RFRA, the government cannot unduly burden someone’s free exercise of religion unless there is a compelling government interest to do so and if it is not too restrictive. In the Horens’ case, Knicely argued, the government had made it impossible for the Horens to practice their religion by making it illegal for them to possess owl feathers that were essential to their religious ceremonies. On January 14, 1997 the Court of Appeals of Virginia agreed with Knicely and The Rutherford Institute. "We find that the Virginia code used to prosecute the Horens is not a religiously neutral statute," the court said. "And that it substantially burdens the free exercise of the Horens’ religion." The court then reversed the Horens’ conviction and dismissed the case.

"The rights of all Americans to religious freedom are more secure today," said Knicely in a press statement following the decision. "With the court’s decision to protect the rights of Native Americans under the Free Exercise Clause, cherished First Amendment principles and protections afforded by the Religious Freedom Restoration Act have been properly vindicated."

John Whitehead, president and founder of The Rutherford Institute, echoed Knicely sentiments. "All freedoms hang together," says Whitehead. "If people of one faith lose their freedoms, we all lose."

The Horens were once again free to roam the highways and woods for sacred owl feathers and practice their Native American religion without fear of government intrusion. But earthly laws are sometimes fickle, and later that same year the U.S. Supreme Court declared the Religious Freedom Restoration Act unconstitutional on the state level.

Once again, the Horens’ right to practice their religion became vulnerable to state law. Attorneys for The Rutherford Institute began preparing a federal appeal on behalf of the Horens, but when they tried to contact them, it appeared that the Iroquois Medicine Keeper and her husband had vanished. Perhaps they moved to another state—deeper into the woods and farther away from laws hostile to the practice of their ancient religion. Perhaps they took to the road, knowing if they kept moving they couldn’t be caught.

In a letter Chief Gail Dark Wind sent to The Rutherford Institute in an effort to solicit help for the Horens, he wrote:

“I ask that you help to dry our tears and ease the ache in our hearts. One of our people has been violated by the hands of the bureaucracy. When does this stop? Are our children and grandchildren to forever be witness to the injustice dealt out to our people?....hear the cry of our heart, are we to be denied even the solace of our culture and our spiritual beliefs? …we ask that you tell others of the grief of Raven Shadow. Let the wind carry her tears to all people so that other children do not stand in fear as their mother is made to suffer wounds to her heart and spirit because she tries to follow the path and live with honor and respect for all of Grandfather’s creations.”

Wherever the Horen's are, let’s hope they’re free to practice their faith.