Oglala Lakota Delegation of the Black Hills Sioux Nation Treaty Council et al v. United States of America et al

Filing 50

ORDER granting 38 Defendants' Motion to Dismiss. Because it cannot be cured by amendment, plaintiffs' complaint is dismissed with prejudice. Signed by Judge Frederick J Martone on 10/29/10.(LSP)

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Lewis, et al. vs James Ray International, Inc., et al., Doc. 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Ivan H. Lewis, et al., Plaintiffs, vs. James Ray, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) No. CV-09-8196-PCT-FJM ORDER We have before us defendants' motion to dismiss (doc. 38), plaintiffs' response (doc. 45), and defendants' reply (doc. 46). Plaintiffs allege that defendants "copied, duplicated, and utilized the Native Americans' Sweat Lodge and ceremony strictly for their own personal gain and commercial profits," in violation of the Indian Arts and Crafts Act ("IACA"), 25 U.S.C. 305e. Plaintiffs contend that defendants copied Native American ceremonial structures and designs, and impersonated Native American traditions and customs. Defendants move to dismiss on the grounds that plaintiffs have failed to properly effectuate service, lack standing, and have not stated a claim upon which relief can be granted. We first consider defendants' contention that plaintiffs have failed to state a claim upon which relief can be granted. Plaintiffs' complaint must contain "well-pleaded factual allegations," which "plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, __ U.S. __, __, 129 S.Ct. 1937, 1950 (2009). Under the IACA, plaintiffs must show that Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defendants (1) offered or displayed for sale a good, (2) "in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization." 25 U.S.C. 305e(b). The Indian Arts and Crafts Board ("Board"), which the IACA vested with the power to prescribe rules and regulations for "the effective execution and administration" of its powers, 25 U.S.C. 305b, has defined an "Indian product" as "any art or craft product made by an Indian." 25 C.F.R. 309.2(d)(1). The regulations also provide several illustrations of Indian products: "[a]rt made by an Indian," "[c]raftwork made by an Indian," and "[h]andcraft made by an Indian, i.e. an object created with the help of only such devices as allow the manual skill of the maker to condition the shape and design of each individual product." 25 C.F.R. 309.2(d)(2). The Act "is essentially a truth-in-advertising law designed to prevent marketing products as `Indian made' when the products are not, in fact, made by Indians as defined by the Act." Indian Arts and Crafts Board, Protection for Products of Indian Art and Craftsmanship, 61 Fed. Reg. 54552 (Oct. 21, 1996). Pursuant to the language of the statute, plaintiffs cannot state a claim for either the first or second elements of a cause of action. First, plaintiffs do not allege that defendants offered or displayed for sale a "good." Goods are "commodities; wares" or "portable personal property." American Heritage College Dictionary 586 (3d ed. 2000). See e.g., A.R.S. 47-2105(A) (U.C.C. 2-105(A)). The sweat lodge experiences that are the subject of plaintiffs' complaint are services, rather than "goods." Second, plaintiffs do not allege that defendants purported to sell an "Indian product." The operation of a sweat lodge is plainly not art, craftwork, or a handcraft. Moreover, the Board explicitly rejected the suggestion that the definition of Indian product should cover "any cultural property of an Indian tribe or moiety and include a reference to a compatible Indian cultural property law." Protection for Products of Indian Art and Craftsmanship, 61 Fed. Reg. 54553. The Board concluded instead that the "focus on the contemporary arts and crafts market is in keeping with the Congressional intent of the Act and the legislated mission of the Indian Arts and Crafts Board--economic growth through the development and promotion of contemporary Indian -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arts and crafts." Id. We cannot extend the IACA beyond "goods" purported to be "Indian products" to also cover "services." To do so would clearly violate both the language and purpose of the statute, as well as the Board's regulations. Therefore, plaintiffs' allegations about the sweat lodge ceremonies cannot establish a claim for a violation of the IACA. Accordingly, we need not address defendants' remaining contentions about service of process or plaintiffs' standing. IT IS ORDERED GRANTING defendants' motion to dismiss (doc. 38). Because it cannot be cured by amendment, plaintiffs' complaint is dismissed with prejudice. DATED this 29th day of October, 2010. -3-

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