Native American Arts, Inc. v. Waldron Corp., 04-3182.

• Citation: 399 F.3d 871
• Decision Date: 02 March 2005
• Docket Number: No. 04-3182.,04-3182.
• Parties: NATIVE AMERICAN ARTS, INC., et al., Plaintiffs-Appellants, v. THE WALDRON CORPORATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

399 F.3d 871

NATIVE AMERICAN ARTS, INC., et al., Plaintiffs-Appellants, v. THE WALDRON CORPORATION, Defendant-Appellee.

No. 04-3182.

United States Court of Appeals, Seventh Circuit.

Argued January 18, 2005.

Decided March 2, 2005.

Rehearing and Rehearing En Banc Denied April 14, 2005.

Michael P. Mullen (argued), Mullen & Foster, Chicago, IL, for Plaintiffs-Appellants.

Elizabeth A. Knight (argued), Knight, Hoppe, Kurnik & Knight, Des Plaines, IL, Stephen P. Carponelli, Carponelli & Krug, Chicago, IL, for Defendant-Appellee.

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 information 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. H.R.Rep. No. 400(II), 101st Cong., 2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 6391, 6392; Jon Keith Parsley, Comment: "Regulation of Counterfeit Indian Arts and Crafts: An Analysis of the Indian Arts and Crafts Act of 1990," 18 American Indian L.Rev. 487, 492-93 (1993); see also Indian Arts and Crafts Board, "Protection for Products of Indian Art and Craftsmanship," 61 F.R. 54551, 54551-52 (Oct. 21, 1996). In 1990, Congress authorized government and private civil suits. 25 U.S.C. § 305e(c); H.R.Rep. No. 400(II), supra, 1990 U.S.C.C.A.N. at 6395-96, in which hefty damages can be awarded. 25 U.S.C. §§ 305e(a)(2), (b); William J. Hapiuk, Jr., Note: "Of Kitsch and Kachinas: A Critical Analysis of the Indian Arts and Crafts Act of 1990," 53 Stan. L.Rev. 1009, 1025 (2001). There have been some suits under the amended statute, but none until this one that got beyond the district court level.

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). The plaintiffs say that because two district judges to whom the case had previously been assigned held the regulation constitutional, Judge Der-Yeghiayan was bound by the doctrine of the law of the case to hold likewise and his refusal to do so was a reversible error. We agree that he should have adhered to his predecessors' ruling, because the ruling was correct and in any event there was no reason to reexamine it. But his failure to do so does not bind us. The doctrine of law of the case limits reconsideration of rulings by the same or a lower court; it does not limit reconsideration by a higher court of rulings of a lower court. McMasters v. United States, 260 F.3d 814, 818 (7th Cir.2001); Williams v. Commissioner, 1 F.3d 502, 503-04 (7th Cir.1993); Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 715 (9th Cir.1990).

The plaintiffs do not put all their eggs in a basket with no bottom; they also challenge the soundness of Judge Der-Yeghiayan's ruling that the "unqualified use" regulation infringes freedom of speech and is also unconstitutionally vague and overbroad. He indeed was wrong. If he were right, trademark law would be unconstitutional. In effect the regulation makes "Indian" the trademark denoting products made by Indians, just as "Roquefort" denotes a cheese manufactured from sheep's milk cured in limestone caves in the Roquefort region of France. 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 19:91, p. 19 (4th ed.2004 supp.). A non-Indian maker of jewelry designed to look like jewelry made by Indians is free to advertise the similarity but if he uses the word "Indian" he must qualify the usage so that consumers aren't confused and think they're buying not only the kind of jewelry that Indians make, but jewelry that Indians in fact made. There is no constitutional infirmity. San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 531-41, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987); TE-TA-MA Truth Foundation — Family of URI, Inc. v. World Church of Creator, 297 F.3d 662, 667 (7th Cir.2002); Coca-Cola Co. v. Purdy, 382 F.3d 774, 787-88 (8th Cir.2004); Taubman Co. v. Webfeats, 319 F.3d 770, 774-75 (6th Cir.2003). But this conclusion does less for the plaintiffs than they hoped.

The regulation is the work of a small office in the Department of Interior called the Indian Arts and Crafts Board, 25 U.S.C. § 305, and a more substantial question than the constitutional questions that bedazzled the district judge is whether a regulation that "interpret[s]" "the unqualified use of the term `Indian'... or the unqualified use of the name of an Indian tribe" to denote "an Indian product" is authorized by the Indian Arts and Crafts Act, which so far as relates to this issue merely authorizes the Department of the Interior to define the term "Indian product." § 305e(d)(2). That is not an authorization to determine what representations convey the impression that a work is such a product. There is no indication that Congress delegated to the Department authority to determine what constitutes sufficient proof of false advertising. Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 649-50, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990); Commodity Futures Trading Commission v. Zelener, 373 F.3d 861, 867 (7th Cir.2004); Murphy Exploration & Production Co. v. U.S. Dept. of Interior, 252 F.3d 473, 478-80 (D.C.Cir.2001); Nagahi v. INS, 219 F.3d 1166, 1169-71 (10th Cir.2000). The meaning of "Indian product" is plausibly within the scope of knowledge of an Indian Arts and Crafts Board — but not the requisites for proving consumer confusion, especially when it is not Indians, but non-Indians, who are the principal consumers of faux Indian products, and especially since the Board's enforcement role is extremely limited. The Board cannot conduct or initiate remedial proceedings; all it can do is refer complaints to the FBI for investigation, and to the Department of Justice for prosecution or civil action. 25 U.S.C. § 305d.

Well, it can do a little more; it can indicate the circumstances in which it will make such a reference. The analogy is to...