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United States v. Corrow

Citation: 28 ELR 20125
No. 96-2185, 119 F.3d 796/(10th Cir., 07/11/1997)

The court upholds a defendant's convictions under the Native American Graves Protection and Repatriation Act (NAGPRA) and the Migratory Bird Treaty Act (MBTA) for illegally trafficking a ceremonial Navajo mask and possessing protected feathers. The court first holds that NAGPRA § 3001(3)(D), which defines "cultural patrimony," is not unconstitutionally vague. Defendant had fair notice that Native American objects having ongoing historical, traditional, or cultural importance central to the Native American group could not be bought and sold absent criminal consequences. And defendant is knowledgeable about Navajo traditions and culture and would have been aware that various tribal members viewed ownership of property differently. In addition, a witness testified that she reminded defendant both of the Navajo Nation's implementing procedures to return cultural items and of the enactment of NAGPRA. Most damning was defendant's representation that he wanted to buy the ceremonial mask to pass on to another young chanter in Utah when he actually intended to sell the mask. Reasonably, a jury could infer from that representation that defendant appreciated some dimension of the mask's inherent inalienability in Navajo culture. And even if the term cultural patrimony might reflect some uncertainty as applied to extreme situations, the conduct for which defendant was prosecuted and convicted falls squarely within the core of the Act. The court also noted that NAGPRA § 1170(b) includes scienter as an element of the offense. A scienter requirement may mitigate a criminal law's vagueness by ensuring that it punishes only those who are aware their conduct is unlawful. And as applied to defendant, there is no potential for arbitrary and discriminatory enforcement, because NAGPRA § 1170(b) provides sufficient guidance to law enforcement.

The court next holds that the evidence supported the NAGPRA conviction. The evidence, including testimony by experts, family members, and U.S. Forest Service agents, viewed in the government's favor satisfies the court that a rational jury could find beyond a reasonable doubt that the mask is cultural patrimony and that defendant could not resell it for profit. Last, the court holds that misdemeanor violations under MBTA § 703 are strict liability crimes. The plain language of § 703 renders simple possession of protected feathers unlawful, and the evidence abundantly satisfies this provision. Thus, defendant's MBTA conviction is also upheld.

Counsel for Plaintiff
Paula Burnett, Ass't U.S. Attorney
U.S. Attorney's Office
625 Silver Ave. SW, Ste. 400, Albuquerque NM 87102
(505) 766-3341

Counsel for Defendant
Joseph Gandert, Ass't Federal Public Defender
Federal Public Defender's Office
P.O. Box 449, Albuquerque NM 87103
(505) 766-3293

Before McWilliams and Lucero, JJ.