United States v. Corrow
119 F.3d 796 (1997)
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Rule of Law:
The definition of 'cultural patrimony' under the Native American Graves Protection and Repatriation Act (NAGPRA) is not unconstitutionally vague as applied to a defendant knowledgeable in Native American culture whose conduct falls squarely within the statute's prohibitions. Furthermore, misdemeanor violations for possession of protected bird feathers under the Migratory Bird Treaty Act (MBTA) are strict liability offenses that do not require proof of scienter.
Facts:
- Ray Winnie, a Navajo religious singer known as a hataali, owned a set of Yei B’Chei, which are sacred ceremonial masks embodying living gods.
- After Ray Winnie died in 1991 without making provisions for the Yei B'Chei, his 81-year-old widow, Fannie Winnie, came into their possession.
- Richard Corrow, a dealer of Native American artifacts who was knowledgeable about Navajo culture, visited Fannie Winnie multiple times.
- In August 1993, Corrow purchased the twenty-two Yei B'Chei and other artifacts from Fannie Winnie for $10,000, telling her he planned to deliver them to a young Navajo chanter in Utah to keep them sacred.
- In November 1994, Corrow arranged to sell seventeen of the Yei B’Chei to an undercover National Park Service ranger for $70,000.
- When Corrow arrived in Santa Fe to complete the sale, federal agents executed a search warrant and discovered the Yei B’Chei in his possession.
- Several of the headdresses and ceremonial sticks associated with the Yei B'Chei were adorned with eagle and owl feathers, which are protected under the Migratory Bird Treaty Act.
Procedural Posture:
- The United States charged Richard Corrow in the U.S. District Court for the District of New Mexico with trafficking in Native American cultural items (NAGPRA) and selling protected bird feathers (MBTA).
- Corrow filed a pretrial motion to dismiss the NAGPRA count, arguing its definition of 'cultural patrimony' was unconstitutionally vague; the district court denied the motion.
- A jury convicted Corrow of trafficking under NAGPRA and acquitted him of selling protected feathers but found him guilty of the lesser included offense of possessing protected feathers.
- Corrow filed a post-trial motion renewing his constitutional challenge and arguing insufficiency of the evidence, which the district court denied.
- Corrow, as appellant, appealed his convictions to the United States Court of Appeals for the Tenth Circuit.
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Issue:
Does the definition of 'cultural patrimony' in the Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001(3)(D), violate the Fifth Amendment's Due Process Clause by being unconstitutionally vague?
Opinions:
Majority - Porfilio, J.
No. The definition of 'cultural patrimony' in NAGPRA is not unconstitutionally vague as applied to the defendant's conduct. A vagueness challenge to a statute that does not involve First Amendment freedoms must be examined in light of the facts of the case at hand, and the statute provided Corrow with fair notice that his conduct was prohibited and did not encourage arbitrary enforcement. The court reasoned that Corrow was not an unsuspecting individual; his expertise in Navajo culture and his misrepresentation to Fannie Winnie that he would keep the Yei B'Chei sacred indicated he had notice of their inalienable status. While cultural experts disagreed on some nuances of alienability, no expert testified that it was permissible to sell Yei B'Chei to a non-Navajo for commercial profit. Therefore, Corrow's conduct fell 'squarely within the core' of what the statute prohibits. The statute's scienter requirement ('knowingly') further mitigates vagueness concerns, and law enforcement followed proper procedure by consulting with tribal experts, which prevents arbitrary enforcement.
Analysis:
This decision solidifies the constitutionality of NAGPRA's 'cultural patrimony' definition against as-applied vagueness challenges, particularly for defendants with expertise in the relevant culture. It establishes that internal tribal disagreements on ownership customs do not automatically render the statute unenforceably vague. The ruling reinforces the principle that statutes with a scienter requirement are less susceptible to vagueness claims and sets a precedent in the Tenth Circuit that law enforcement can rely on consultation with tribal authorities to guide enforcement, strengthening the legal protection of communally-owned cultural items from commercial exploitation.
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