Oklahoma American Indian Arts and Crafts Sales Act of 1974 Struck Down [definition of “Indian” more restrictive than federal law]

Here are the materials in Fontenot v. Hunter (W.D. Okla.):

1 Complaint

33 Ps Motion for Summary Judgment

35 Oklahoma Motion for Summary Judgment

39 Ps Response

41 State Response

42 State Reply

43 Ps Reply

47 DCT Order

An excerpt:

Although the Court rejects Plaintiff’s challenges under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as well as those under the dormant Commerce Clause and the First Amendment, the Court finds for the foregoing reasons that Plaintiff has shown that Oklahoma’s American Indian Arts and Crafts Sales Act of 1974, as amended, Okla. Stat. tit. 78, §§ 71-75, violates the United States Constitution’s Supremacy Clause and is therefore unconstitutional, both facially and as applied to her.

 

Federal Court Denies Rule 11 Sanctions Motion against Native American Arts by Party Whose Arguments Were Borderline Frivolous

Here are the materials in Native American Arts v. Peter Stone Co. (N.D. Ill.):

367-motion-for-sanctions

370-opposition

371-reply

373-dct-order

An excerpt:

In that briefing, the defendant’s primary position was that the plaintiff was collaterally estopped from establishing standing. Its secondary position was that plaintiff did not qualify as an Indian arts and crafts organization under the Indian Arts and Crafts Act (“IACA”), 25 U.S.C. § 305 IACA. Both arguments were rejected as non-starters. Native Am. Arts, Inc., 2015 U.S. Dist. LEXIS 74187, 2015 WL 3561439, at *5-7. An intemperate opponent might have called them frivolous, but the mere fact that a position is a loser does not make it frivolous.

Another:

As for this time, however, it’s worth noting that the defendant was unable to mount a challenge to plaintiff’s standing until six years into this litigation; that tends to further undermine defendant’s position that this was an obvious flaw in the plaintiff’s suit and one that plaintiff should have readily conceded and should have dropped its suit early on. Indeed, if it were such a frivolous suit it would seem that defendant could have put together a successful motion for summary judgment based on the standing issue some time ago, thereby avoiding many of the costs and expenses of which it now complains.

 

US Confiscates Fake Indian Art from Santa Fe Plaza Stores

Here is the complaint in United States v. 13 Pieces of Counterfeit Native American Jewelry (D.N.M.):

Complaint

And here is the complaint in United States v. $20,109 in U.S. Currency (D.N.M.):

Complaint

Quileute Tribe Sues Merchandising Company for Violation of Indian Arts and Crafts Act Related to “Twilight” Movies

Here is the complaint in Quileute Tribe v. National Entertainment Collectibles Association (W.D. Wash.):

1 Complaint

An excerpt:

1. The Quileute Tribe brings this Complaint against National Entertainment Collectibles Association, Inc. (“NECA”) for unfair competition and for violation of the Indian Arts and Crafts Act. In this action, the Quileute Tribe seeks to protect its heritage from Defendant’s improperly marketed and advertised products, and to ensure that consumers are no longer deceived, confused or misled in their pursuits to find and acquire authentic and genuine Quileute products.

2. The Quileute people have lived on the Olympic Peninsula for thousands of years, and have their own unique language, art and folklore. Quileute art and artifacts are prized for their distinctive character, and are displayed in museums throughout Washington.
3. As alleged herein, NECA has advertised, promoted, and sold its goods under the “Quileute” name on the Internet and in various retail stores across the United States. Defendant’s conduct is designed to convey to consumers a false association or affiliation with the Quileute Tribe, and to unfairly trade off of the fame, reputation and goodwill of the Quileute Tribe.
4. Consumers have been misled as to the source, origin, sponsorship, or affiliation of Defendant’s products sold under the “Quileute” name. If Defendant is permitted to continue to market and retail its products, many consumers will conclude that the goods sold by NECA were originated from, jointly developed by, licensed, certified, supported by or are otherwise affiliated with the Quileute Tribe, which they are not.
5. In addition, NECA sells its goods by falsely suggesting they are the product of the Quileute Tribe, are Indian-produced or are the product of an Indian Tribe, in violation of the Indian Arts and Crafts Act.

6. The Quileute Tribe accordingly brings this action, seeks damages, and seeks to enjoin NECA from using the “Quileute” name for the marketing and sale of goods.

Constitutional Challenge to Indian Arts and Crafts Act Fails

Here is the opinion in what appears to be the first IACA case in the First Circuit, out of the District of Rhode Island: DCT Order Denying Specialties’ Motion to Dismiss

 

Indian Arts and Crafts Act Claims Dismissed on Personal Jurisdiction Grounds

Here is the opinion — Native American Arts v Contract Specialites — Sunburst Cos.

An excerpt:

The problem, for purposes of jurisdiction, is that NAA only made conclusory allegations that Sunburst’s products arc purchased in Illinois. (Compl. P 4.) Although this may be sufficient if left unchallenged, Sunburst submitted an affidavit, stating that it has never purposefully directed advertising to Illinois and that none of its eight Illinois customers (with the exception of NAA) has ever purchased goods of the type at issue in this suit. (Guarino Aff. PP 13, 14.) NAA did not attempt to refute that evidence. Therefore, the Court does not view this as a genuine factual dispute that warrants an evidentiary hearing. Cf. Hyatt, 302 F.3d at 713 (stating that evidentiary hearing would be necessary to resolve disputed matcrial facts relevant to jurisdiction). Because NAA also alleges that Sunburst sells products in the “traditional Indian style” throughout the United States, the absence of sales in Illinois does not doom NAA’s claim. It does, however, doom NAA’s assertion of personal jurisdiction over Sunburst.

Federal Seizures of Indian Art Puts Damper on Indian Market

From the Denver Post (H/T M.C.):

SANTA FE, N.M.—An intensifying federal investigation into the sale of Native American artifacts has brought fear and uncertainty to one of the nation’s largest and longest-running Indian artifact shows.

Wealthy collectors are more cautious about buying artifacts for fear of criminal liability, and reputable dealers say they’re working double-time to prove their legitimacy after being wrongly lumped together with looters and gravediggers.

The aisles of the exhibit hall at the 31st annual Whitehawk Antique Show were crowded with collectors, including business leaders and Santa Fe’s elite. There were hugs and handshakes from the dealers for their regular customers, but rumors also were circulating about suspicious vans outside and undercover federal agents.

Amid grumbling about government meddling, the tension was evident.

“I think a lot of people are just scared because there’s a lot of misconception about whether this stuff is legal or illegal,” said Jeff Hammond, a private collector and dealer who was displaying prehistoric pots at the show.

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