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Wednesday, March 02, 2005

Ind. Decisions - 7th Circuit posts two today

Hor, Abdelhadi v. Gonzales, Alberto R. (Bd.Imm.App.) [8 pp.]

Native American Arts v. Waldron Corporation (ND Ill.) [8 pp.]

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges. POSNER, Circuit Judge. The Indian Arts and Crafts Act, 25 U.S.C. §§ 305 et seq., forbids (so far as bears on this case) selling a good “in a manner that falsely suggests it is . . . an Indian product.” § 305e(a). The principal plaintiff, Native American Arts (NAA), is a seller of goods produced by Indians. It brought this suit for damages against a non-Indian manufacturer of Indian-style jewelry that is advertised under such names as “Navajo,” “Crow,” “Southwest Tribes,” and “Zuni Bear” and sold with tags that give facts about the tribe. The ads identify the designer of the jewelry as Trisha Waldron, who is not an Indian. Neither the tags nor the ads contain any disclaimer of authenticity. The case was tried to a jury, the verdict was for the defendants, and the plaintiffs appeal. Although the Indian Arts and Crafts Act dates back to 1935, this is—amazingly—the first reported appellate case under it. Until 1990, the only sanction for violating the false-advertising provision was criminal; and there were no prosecutions—zero. * * * The plaintiffs’ principal argument is that the district judge should not have held unconstitutional, and therefore refused to base an instruction to the jury on, a regulation that provides that “the unqualified use of the term ‘Indian’ or . . . of the name of an Indian tribe . . . in connection with an art or craft product is interpreted to mean . . . that the art or craft product is an Indian product.” 25 C.F.R. § 309.24(a)(2). * * * So there was no error in the instructions. The other arguments made by the plaintiffs either are rendered academic by our ruling on the adequacy of the instructions or lack sufficient merit to warrant discussion. The judgment for the defendant is AFFIRMED.

Posted by Marcia Oddi on March 2, 2005 01:30 PM
Posted to Ind. (7th Cir.) Decisions