Indian-made. Retailers’ testimony is also relevant because a good retailer is also
well versed in selling to the customer and versed in understanding its customers’
perceptions. In addition, as Olson and Baskin were familiar with the particular
jewelry and displays in question, in this case, their opinions were relevant in
determining whether there was a false suggestion that the products were Indian-
made. Also, the fact that the Plaintiffs have resorted to arguing as to what is the
“gist” of the [ACA and that they fail to cite any law in support of their position

shows that Plaintiffs are reaching far beyond the law in making such arguments.

VI. lation ET

Plaintiffs challenge the court’s jury instructions regarding the calculation of
damages. We instructed the jury that damages would be calculated at $1,000 per
day for each display of the product. On November 6, 2003, we issued a ruling which
provided an elaborate explanation for the instruction that was to be given to the jury.
Calculating damages at $1,000 for each piece of jewelry as Plaintiffs proposed, leads
to unreasonably large damage awards and such a result clearly was not intended by

Congress.

19



distinguishing ... the harmless from the harmful. ...” Jd. Although the
government is not required to show that the restriction is the least restrictive means
to advance the public interest, the government is required to show that the restriction
is “reasonable,” meaning that the regulation “represents not ‘necessarily the single
best disposition but one whose scope is ‘in proportion to the interest served, . . . that
employs not necessarily the least restrictive means but, as [the court has] put it in the

other contexts, a means narrowly tailored to achieve the desired objective.” Jd.

In the case before us the restriction included in 25 C.F.R. § 309.24 is not
reasonable because it is not in proportion to the interest of preventing consumers
from being misled into believing that certain arts and jewelry are Indian-made.
There are any number of alternative means that the government could use to further
such an objective that would not inhibit completely lawful activity under the LACA,
and the use of the broad term “unqualified” unnecessarily delves into lawful activity

under the IACA and is clearly unconstitutional.

IL. Prior Judges’ Rulings Regarding Regulation
Plaintiffs argue that the court erred in failing to instruct the jury regarding 25
C.F.R. § 309.24 because prior judges in the case indicated that an instruction should

be given to the jury. A subsequent judge sitting in a case cannot alter the prior

13



§ 309.24 How will statements about Indian origin of art or craft products be interpreted?
(a) In general. The unqualified use of the term "Indian" or of the term "Native
American" or the unqualified use of the name of an Indian tribe, in connection
with an art or craft product, is interpreted to mean for purposes of this part
that- “

(1) The maker is a member of an Indian tribe, is certified by an Indian tribe as
a non-member Indian artisan, or is a member of the particular Indian tribe
named; and

(2) The art or craft product is an Indian product.

(b) Products of Indians of foreign tribes--

(1) In general. The unqualified use of the term "Indian" or of the term "Native
American" or the unqualified use of the name of a foreign tribe, in connection
with an art or craft product, regardless of where it is produced and regardless
of any country-of-origin marking on the product, is interpreted to mean for
purposes of this part that--

(i) The maker is a member of an Indian tribe, is certified by an Indian tribe as
a non-member Indian artisan, or is a member of the particular Indian tribe named;
(ii) The tribe is resident in the United States; and

(iii) The art or craft product is an Indian product.

(2) Exception where country of origin is disclosed. Paragraph (b) of this
section does not apply to any art or craft for which the name of the foreign
country of tribal ancestry is clearly disclosed in conjunction with marketing of
the product.

Example. X is a lineal descendant of a member of Indian Tribe A. However,
X is not a member of Indian Tribe A, nor is X certified by Indian Tribe A as a
non-member Indian artisan. X may not be described in connection with the
marketing of an art or craft product made by X as an Indian, a Native
American, a member of an Indian tribe, a member of Tribe A, or as a non-
member Indian artisan of an Indian tribe. However, the true statement may be
used that X is of Indian descent, Native American descent, or Tribe A descent.

25 C.F.R. § 309.24(emphasis added). At trial we instructed the jury, in accordance
with the Indian Arts and Crafts Act of 1990 (“IACA”). We refused Plaintiffs’

request to include a jury instruction regarding 25 C.F.R. § 309.24 and its reference to


Ff

¢?

VIL Testimony of Bear Tracks Employees

Plaintiffs argue that the court erred in refusing to admit the alleged statements
of retail clerks at the Bear Tracks store allegedly made to Matthew and Daniel
Mullen. Matthew and Daniel claimed that when they purchased Defendant’s
products, the store clerks told them that the products were Indian-made. However,

the statements were clearly hearsay and no hearsay exception applies.

VIIL Alleged Personal Attacks on Plaintiffs

Plaintiffs contend that we erred in some fashion because Plaintiffs contend
that Defendant’s counsel engaged in personal attacks against Plaintiffs in
Defendant’s opening statement and in the closing arguments. Defendant’s counsel’s
actions were not sufficiently severe to warrant any actions by the court other than
were taken at trial. Therefore, the court did not err in denying Plaintiffs’ motion for

a mis-trial based upon the alleged personal attacks.

IX. Remaining Arguments

Plaintiffs also include in their briefs various other conclusory arguments. In

regards to these arguments, Plaintiffs misunderstand the purpose of a motion to

20



*

i?

IV, Admission of Point of Purchase Card
Plaintiffs argue that the court erred in admitting into evidence Defendant’s

point of purchase card. The card was used by Defendant in sales displays. There
was testimony that the cards were given to retailers to be presented along with the
display of the Circle of Nations line and circumstantial evidence indicating that the
cards were present at displays brought into issue by the Plaintiffs at trial. The cards
were relevant in determining whether or not Defendant’s sales displays were false
and misleading. Simply because Plaintiffs chose not to take a card when they
secretly video taped stores and chose not to video tape the cards when they
purchased jewelry does not make the cards any less probative on the issue of

whether or not the displays were false and misleading.

V. Testimony of Sherry Baskin and Linda Olson

Plaintiffs contend that the court erred in admitting the testimony of Sherry
Baskin (“Baskin”) and Linda Olson (“Olson”). Baskin was employed by a store
named Bear Tracks that sold Defendant’s products. Her testimony was probative on
a variety of issues. One example is that since she was the direct purchaser from

Defendants and thus was in essence an initial consumer of Defendant’s products, it is

17



qualify the term. Taking again the above example with the broaches, the seller
might change the labels on the boxes to read “Johnson’s Cherokee Indian Flower”
thinking that a clearly non-Indian term in the phrase would qualify the use of the
restricted terms. The seller might think that he could qualify the terms as long as he
included, along with the general references to “Indian” “Cherokee,” more specific
references to the Indian culture and the Cherokee tribe. The seller might also
conclude that he should provide a disclaimer stating that the product is not Indian-
made. Even if the seller did so, it would be unclear what would be an acceptable
way to qualify the terms. One could argue that the disclaimer should immediately
follow the terms and should thus state: “Cherokee Indian Flower (this broach was
not made by Native Americans).” Other sellers might conclude that a slip of paper
with the disclaimer in the box accompanying the broach would be sufficient. There
are any number of potential misconceptions that non-Indian sellers might have when
determining what they would need to do to comply with the statute. Non-Indian
sellers are thus not provided with sufficient notice of what is prohibited and because
of the vague nature of the term “unqualified,” the statute can be arbitrarily applied
against non-Indian sellers in civil actions because each individual has a different
perception of what is necessary to qualify the terms. Thus, no matter what the non-

Indian seller does, there will always be an argument that the non-Indian seller did


or

25 U.S.C. § 305e. The IACA requirement that the display be falsely suggesting

indicates that the statute is intended to prevent misrepresentations and misleading.

| displays that would deceive consumer and lead them to incorrectly conclude that the

products were Indian-made. However, the regulation’s statement that the
unqualified use of the terms “Indian,” “Native American,” or the name of a tribe is
inconsistent with the IACA. There are many possible ways to use the words
“Indian” or “Native American” or the name of a tribe in connection with the sale of
artwork or jewelry that would not falsely mislead the consumer into believing that
the merchandise was necessarily Indian-made. We shall provide a hypothetical
example to illustrate this point. Suppose a store sold broaches that depicted a flower
standing in tall grass on the prairie. Suppose there were hundreds of the broaches,
which were all identical, and the broaches on display were set in boxes with a label
that read “Cherokee Indian Flower.” A reasonable consumer would not
automatically be lead to conclude, based upon the use of the phrase “Cherokee
Indian,” that the broaches were made by a Native American utilizing skills passed
down from the generations in accordance with his or her time honored traditions.
This is not to say that the product would be presumed not to be Indian-made. A
Native American could have produced the broaches in his workshop or on machines

in his factory in which Native Americans work. However, the key is that a


the “unqualified use” of the terms “Indian,” “Native American,” or the name of a
tribe. We indicated at trial that the regulation was inconsistent with the plain
language of the statute and that the regulation is unconstitutional. The regulation is
“unconstitutional because it is vague and overbroad and is also unconstitutional to the

_ extent that it seeks to regulate commercial speech.

Inconsi ith St
The regulation is inconsistent with the IACA and would be misleading for a
jury. The IACA provides:

§ 305e. Cause of action for misrepresentation of Indian produced goods

(a) Injunctive or equitable relief; damages

A person specified in subsection (c) of this section may, in a civil action in a
court of competent jurisdiction, bring an action against a person who, directly
or indirectly, offers or displays for sale or sells a good, with or without a
Government trademark, 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, resident within the United States,
to--

(1) obtain injunctive or other equitable relief; and
(2) recover the greater of—
(A) treble damages; or

(B) in the case of each aggrieved individual Indian, Indian tribe, or Indian arts
and crafts organization, not less than $1,000 for each day on which the offer
or display for sale or sale continues.


~~

relevant as to whether she thought the jewelry was Indian-made and whether she
thought the displays or products’ packaging to be falsely misleading. Plaintiffs
complain that Baskin presented her opinions, but Plaintiffs themselves presented
ample testimony at trial from a lay person witness regarding that person’s opinion at
the time of purchase as to whether or not Defendant’s products were Indian-made.
Testimony by Olson at trial, to which Plaintiffs objected, was similarly allowed at

trial and we find no error in admitting her testimony.

Plaintiffs argue that the “[gJist of the [case is a [flalse [s]uggestion to the
[u}itimate [c]onsuming [p]Jublic and [nJot to [rJetailers or [o]ther [pJersons.” (Mot
10). Thus, according to Plaintiffs, Baskin and Olson were acting on behalf of retail
stores purchasing the products from the manufacturer which is not the concern of the
IACA. Plaintiffs thus argue that it is the purchases by the ultimate consumers that
the IACA is concerned with rather than retailers. However, the ultimate objective
stated in legislative history for the ACA, is to prevent Native American artists from
being forced out of business by non-Indian artists and jewelry makers who can
falsely suggest that their products are Indian-made. In regards to this concer, it is
entirely relevant how retailers perceived goods that they purchase from jewelry
makers and artists. Perhaps a retailer wants to purchase only Indian-made goods

and, because of the display of the goods, the retailer mistakenly believes goods to be

18


that is ‘sold’ for profit.”); Ayres v. City of Chicago, 125 F.3d 1010, 1014 (7* Cir.

1997)(holding that T-shirts sold by plaintiffs were “a medium of expression prima

| facie protected by the free-speech clause of the First Amendment, and they d[id] not

lose their protection by being sold rather than given away.”).

To determine whether a regulation is unconstitutionally vague under the due
process doctrine of vagueness, a court must consider: “(1) whether it provides
sufficient notice of what may not be done, and (2) whether it contains reasonably
clear guidelines so as to prevent official arbitrariness or discrimination in its
enforcement. International Soc. for Krishna Consciousness v. Rochford 585 F.2d
263, 267 (7* Cir. 1978). In 25 C.F.R. § 309.24, the reference to “unqualified use” is
too vague to meet constitutional muster. A non-Indian seeking to use the mentioned
terms would be lead to infer that he or she must somehow qualify the use of the
words. It is unclear what is entailed in qualifying the words. Webster’s Ninth New
Collegiate Dictionary defines the word “qualify” in part as: “to reduce from a
general to a particular or restricted form[,] . . . to make less harsh or strict[,] . . . to
limit or modify the meaning off,] . . . [or] to characterize by naming an attribute.”
Thus, a non-Indian seller of jewelry or artwork with the term “Indian” or “Native
American” would need to try and discern what must be done to qualify the term. A

non-Indian seller might conclude a number of different actions were required to



United States District Court, Northern District of Illinois

Name of Assigned ~ i Sitting Judge if
JudgeorMagldrate | Samuel Der-Yeghiayan Other tan
Judge Assigned Judge
CASE NUMBER 01 C 2370 DATE 7122/2004
CASE Native American Arts, Inc. vs. The Waldron Corp
TITLE
t [In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefty
: MOTION: the nature of the motion being presented.]
; :

DOCKET ENTRY:

60) Qa Filed motion of [ use listing in “Motion” box above.]

2) a Brief in support of motion due

(3) Oo Answer brief to motion duc. . Reply to answer brief due. :

(4) oO Ruling/Hearing on set for at

() a Status hearing[held/continued to) [set for/re-set for] on set for at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at :

(0) Oo Trial[set for/re-set for] on at

(8) im [Bench/Jury trial] [Hearing] held/continued to at

(¢)) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) O Local Rule 41.1 OFRCP41(a)(1) COFRCP4i(a)(2).

(10) Ml [Otherdocketentry] For the reasons stated in the attached memorandum opinion, the plaintiffs’ motions
for anew trial and to amend and vacate the judgment entered in favor of defendant on 11/25/03, in accordance
with the jury’s verdict is denied. The Court finds no just reason to delay the appeal in this matter. Enter
Memorandum Opinion.

al) [For further detail see order attached to the original minute order.]

‘No notices required, advised in open court.
‘No notices required.
Notices mailed by judge's staff.
Notified counsel by telephone,
wo | Docketing to mail notices. The parties
picked up copies of the memorandum es
opinion. Lynd LowLsId “SN
Mait AO 450 form, yun
Cony ndgetmgisraejude E138 Wd 22 WNC AWE
courtroom 44-054
ww ES 103-0314
initials
Date/time received in
central Clerk’s Office

4
fic
eee eee a



selling art and jewelry. The use of the term “unqualified” expands the scope of the
restriction to encompass other protected speech that the government has no

legitimate interest in regulating.

We note that Plaintiffs themselves, through this litigation, have conceded that
Defendant’s jewelry was the result of her personal designs and expression and was
artwork. To the extent that the packaging and displays of Defendant’s products may
be commercial speech the regulation is also impermissible. See Board of Trustees of
State Univ. of New York v. Fox, 492 U.S. 469, 476-486 (1989)(stating that “[a]
government’s restrictions on commercial speech may be no more broad or no more
expansive than ‘necessary’ to serve its substantial interests.”); Virginia State Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc, 425 U.S. 748, 764-766
(1976)(stating that “society ... may have a strong interest in the free flow of
commercial information . . . [and that] [e]ven an individual advertisement, though
entirely "commercial," may be of general public interest)(stating in addition that “[i]t
is a matter of public interest that [consumer’s] decisions, in the aggregate, be
intelligent and well informed . . .[and] [t]o this end, the free flow of commercial
information is indispensable.”). Commercial speech is “speech which proposes a
commercial transaction.” Hornell Brewing Co., Inc. v. Brady, 819 F.Supp. 1227,

1233 (E.D.N.Y. 1993). The First Amendment and the Fourteenth Amendment

11



not do what is required under the regulation.

The regulation is also overbroad. The purpose of the “overbreadth doctrine”
is to prevent “the government from casting a net so wide that its regulation
impermissibly burdens speech.” Schultz v. City of Cumberland, 228 F.3d 831, 848
(7* Cir. 2000). A plaintiff can show that a regulation is facially overbroad by
establishing that there is "a realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of parties not before the
Court." Id.(quoting City Council of Los Angeles v. Taxpayers for Vincent 466 U.S.
789, 801 (1984)). A regulation can be found overbroad only if “a limiting
construction is not readily available and the unconstitutional applications of the
regulation are real and substantial in relation to the regulation's plainly legitimate
sweep.” Id.

As stated above, the IACA is clearly intended to prohibit non-Indian sellers of
arts and crafts from falsely misleading consumers into concluding that the sellers’
merchandise is Indian-made. The broach example listed above is only one example
of how the term “unqualified” in the regulation prohibits uses of the terms “Indian”
and “Native American” and Indian tribal names that are entirely lawful and clearly
not the concern of the IACA. The IACA does not seek to prohibit all usage of the

terms by non-Indians. It acknowledges that non-Indians can use the terms when

10



consumer would not be lead to presume that the product was Indian-made by looking

at the merchandise or the display. The regulation, on the other hand, instructs jurors
| to conclude that consumers of the broaches, whether they purchased the broaches at
‘a shop that sold Indian Jewelry, or purchased the broaches at a grocery store, saw the
‘terms “Indian” and “Cherokee” on the boxes and thought the broaches were Indian-

made.

B. Unconstitutional

We also indicated at trial that the regulation was unconstitutional. The
regulation is vague, overbroad, and is also too far reaching in its regulation of
commercial speech. Restrictions on speech based on “the content of the message. . .
conveyed, is subjected to ‘the most exacting scrutiny.’" Texas v. Johnson, 491 U.S.
397, 412 (1989)(quoting Boos v. Barry, supra, 485 U.S. 312, 321 (1988)).
Defendant contends and Plaintiffs concede in their pleadings that Defendant’s
jewelry was her artwork. Defendant’s jewelry was thus artwork and was the end
product of her expression of the various cultures that she learned about. Such speech
is protected even if the jewelry is eventually sold. See Virginia State Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc, 425 U.S. 748, 761
(1976)(stating that “[s}peech likewise is protected even though it is carried in a form

7


tf

vacate. The motion is not merely an opportunity to ask the court to second guess all
of its decisions at trial by simply listing all decisions made at trial in a cursory
manner and then appending the language “the court erred in regards to such ruling.”
Plaintiffs have failed to provide arguments to support many of Plaintiffs’ allegations
of error. Thus, even after we have allowed Plaintiffs an opportunity to submit
supplemental briefing, their briefs are insufficient in regards to many issues and we
need not address them. We note that we have reviewed all of our rulings in the case

and find that they were all entirely appropriate and proper.

CONCLUSION
Therefore, we deny Plaintiffs’ motion for a new trial and to amend and vacate

the judgment.

Samuel wad Sheed ‘ y

United States District Court Judge

Dated: July 22, 2004

21


of fact and conclusions of law or make new findings and conclusions, and
direct the entry of a new judgment.

(b) Time for Motion. Any motion for a new trial shall be filed no later -than 10
days after entry of the judgment.

(c) Time for Serving Affidavits. When a motion for new trial is based on
affidavits, they shall be filed with the motion. The opposing party has 10 days
after service to file opposing affidavits, but that period may be extended for up
to 20 days, either by the court for good cause or by the parties' written
stipulation. The court may permit reply affidavits.

(d) On Court's Initiative; Notice; Specifying Grounds. No later than 10 days
after entry of judgment the court, on its own, may order a new trial for any
reason that would justify granting one on a party's motion. After giving the
parties notice and an opportunity to be heard, the court may grant a timely
motion for a new trial for a reason not stated in the motion. When granting a
new trial on its own initiative or for a reason not stated in a motion, the court
shall specify the grounds in its order.

3) Motion to Alter or Amend Judgment. Any motion to alter or amend a
judgment shall be filed no later than 10 days after entry of the judgment.

Fed. R. Civ. P. 59.

DISCUSSION

I Whether Regulation was Inconsistent and Unconstitutional

Plaintiffs argue that this court erred in refusing to instruct the jury regarding

regulation 25 C.F.R. 309.24 because it is inconsistent with the statute and is

unconstitutional. The regulation reads as follows:



judge’s ruling “merely because he has a different view of the law or facts from the
first judge.” Williams v, C.LR., 1 F.3d 502, 503 (7" Cir. 1993)(stating that “litigants
have a right to expect that a change in judges will not mean going back to square
one.”). However, a subsequent judge in a case may rule differently “if new
information convinces him” that the prior ruling was incorrect. Jd. This court
found that the regulation was unconstitutional and therefore, we acted appropriately
in excluding the jury instruction, regardless of the prior judges’ rulings.

Plaintiffs argue that Judge Conlon, a prior judge in this case, already ruled in
their favor in her ruling on Defendant’s motion to dismiss. However, Judge Conlon
did not specifically address the regulation or address the issue of whether the
regulation was unconstitutional. Judge, Conlon specifically indicated that she would
not consider Defendant’s arguments relating to the “unqualified” language in the
regulation because they were not introduced until Defendant’s reply brief. Plaintiffs
also contend that Judge St. Eve told them that Plaintiffs’ regulation jury instruction
would be given to the jury. However, Plaintiffs fail to offer documentation for such
a claim and it is their burden to do so as the movants. The record reflects no such
promise by Judge St. Eve. Also, Judge St. Eve was not presented with the issue of
the constitutionality of the regulation and whether it was vague or overbroad or

consistent with the statute. Unlike Judge St. Eve, we had occasion to address these

14



-

1)

of intent. Plaintiffs argue that because the IACA does not specify intent by
including words such as “intended” that no intent is required for a violation of the
statute. However, Plaintiffs’ argument ignores the plain language of the statute
which prohibits a defendant from selling and displaying a product “in a manner that
falsely suggests it is Indian produced. ...” 25 U.S.C. § 305e. The Act is clearly
addressing deceptive conduct. Plaintiffs themselves made significant efforts at trial
to show that Trisha Waldron intentionally marketed her products in a manner in
order to trick customers into thinking that her products were Indian-made. The jury
was properly instructed in regards to the false suggestion requirement. We did not
take an additional step and instruct the jury as to the intent requirement of the IACA.
Instead, we notified the jury of the language of the IACA and remained silent, as the
IACA is silent as to intent. Since the IACA is silent as to intent, it would be
improper for the court on its own to have instructed the jury on matters not referred
to in the statute. Therefore, it was proper not to confuse the jury by delving into the
issue of intent, which is not specifically mentioned in the instruction. Regardless,
had the court delved into the issue of intent the proper instruction would not have
been as Plaintiffs propose indicating that intent is not required to show a violation of

the LACA.

16


unconstitutional. Plaintiffs also argue that the court erred in refusing to instruct the
jury in regards to 25 C.F.R. 309.24 because Plaintiffs contend that the ruling is
contrary to rulings of prior judges in the case. Plaintiffs also claim that the court

failed to instruct the jury properly on the issue of intent and that the court erred in

: admitting Defendant’s point of purchase card. In addition, Plaintiffs contend that the

court erred in admitting the opinion testimony of Sherry Baskin and Linda Olson and
{

that the court erred in improperly instructing the juty regarding the calculation of

damages. Finally, Plaintiffs argue that the court erred in denying Plaintiffs’ motion

for a mis-trial based on alleged personal attacks in opening arguments, closing

arguments, and that the court erred in refusing to admit the statements of Bear

Tracks employees, Plaintiffs also make various other cursory objections, but fail to

provide any basis for their position.

LEGAL STANDARD
Federal Rule of Civil Procedure 59 provides as follows:

(a) Grounds. A new trial may be granted to all or any of the parties and on all
or part of the issues (1) in an action in which there has been a trial by jury, for
any of the reasons for which new trials have heretofore been granted in
actions at law in the courts of the United States; and (2) in an action tried
without a jury, for any of the reasons for which rehearings have heretofore
been granted in suits in equity in the courts of the United States. On a motion
for a new trial in an action tried without a jury, the court may open the
judgment if one has been entered, take additional testimony, amend findings

2



NATIVE AMERICAN ARTS, INC., et al.,

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Plaintiff,
v. | No. 012370

THE WALDRON CORPORATION,

ed

Defendant.

DOCKETED

JUL 23 ‘uu4
MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Plaintiffs’ motion for a new trial and to
amend and vacate the judgment entered in favor of Defendant on November 25,
2003, in accordance with the jury’s verdict. For the reasons stated below, we deny

Plaintiffs’ motions.

BACKGROUND
At the conclusion of a jury trial, a jury found in favor of Defendant in this
case. Plaintiffs now seek to vacate the judgment entered against them and seek a
new trial. Plaintiffs argue that this court erred in refusing to utilize Plaintiffs’ jury
instruction regarding 25 C.F.R. 309.24 on the basis that the regulation is

1

23]


“protect[] commercial speech from unwarranted governmental regulation.” Central
Hudson Gas & Elec. Corp. v. Public Service Commission of New York 447 US.
557, 561 (1980). In Central Hudson Gas & Elec. Corp. v. Public Service
Commission of New York, 447 U.S. 557, 561 (1980) the United States Supreme
Court created an analysis for restrictions on commercial speech. A government can
regulate commercial speech that is protected by the First Amendment, which
concerns lawful activity and is not misleading if: “1) the government establishes a
“substantial interest,” 2) the regulation “directly advance[s] the governmental
interest asserted,” and 3) the regulation is not “more extensive than necessary to
serve the interest asserted.” Jd. See also Hornell Brewing Co., Inc. v. Brady, 819
F.Supp. 1227, 1233 (E.D.N.Y. 1993)holding that the ban of the use of the term
“Crazy Horse” on the defendant’s liquor bottles did not “directly advance” the
government’s asserted interest of protecting Native American’s from falling prey to

alcoholism).

In Board of Trustees of State University of New York v. Fox 492 U.S. 469,
476-486 (1989) the United States Supreme altered theCentral Hudson analysis to
include the “reasonableness test.” The Court in Board of Trustees of State
University of New York stated that "the free flow of commercial information is

valuable enough to justify imposing on would-be regulators the costs of

12



issues as we prepared for trial. Our research indicated that the regulation is
unconstitutional and therefore, based upon our analysis, we concluded that the
proper ruling would be to deny the jury instruction request. In addition, ajudge who
tries a case has a certain discretion in how he or she manages the trial and in his or
her rulings. As the judge presiding over the case, we were presented issues that were
never fully brought to the attention of prior judges in the case, and we ruled
accordingly.

We also properly refused to defer to the regulation because it was
unconstitutional and contradicted the plain language of the statute. If Congress
provides as it does in the IACA that an administrative agency can issue regulations
to further explain the language of a statute “[s]uch legislative regulations are given
controlling weight unless they are arbitrary, capricious, or manifestly contrary to the
statute.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc, 467 U.S.
837, 843-44 (1984). The implementation of regulations must be consistent with the
statute. In this case, the regulation is directly contrary to the statute and is

unconstitutional and thus we properly declined to defer to the regulation.

IL Intent Instruction

Plaintiffs argue that the court failed to properly instruct the jury on the issue

15