interpretation because the “$1,000 per day” damages would apply whether it was a “good” or
“goods.” Simply because the plural form was not used in the initial portion of Section 305e(a)
does not justify the inferences made by NAA.

Congress could have chosen to include in Section 305e(a) “per product per day” or “per
type of product per day” but instead chose to limit the damage calculation to $1,000 per day that
the items were displayed or sold. The section is not ambiguous and we will uphold the statute
according to its plain language. See Kelly v. Wauconda Park Dist., 801 F.2d 269, 270 (7" Cir.
1986)(stating that if the plain language of a statute is clear then a court cannot look beyond the
words of the statute to interpret the statute and stating that a court should investigate the
legislative history of a statute in order to interpret the statute only when the language of the
statute is ambiguous).

We note that NAA explains in its supplemental brief on this issue that it is only seeking
$1,000 in damages per day for each type of product displayed, not damages for each specific item
that was displayed on a particular day. In support of their theory NAA has submitted its
proposed jury instructions. Not only are the instructions unclear and confusing, they are based
upon inaccurate interpretations of the statute. NAA’s argument that they are not seeking
damages “per product,” recognizes that such language is not included in the statute, and their
attempt to read into the statute the language damages “per type of product” fails inasmuch as
such language was not provided by Congress. The court also notes that if damages were
calculated according to the number of goods or types of goods displayed, a defendant’s potential
liability would be much higher than the potential liability of $1,000 per day. Thus, it is not
reasonable to infer that damages are “per type” because such an inference would drastically alter
the resultant damages from the amounts indicated by the plain meaning of Section 305e(a). In

order to conclude that Congress intended such a result we would need to read into Section


CONCLUSION
Based on the foregoing analysis we sustain Waldron’s objections to Plaintiff's instruction
numbers 30, 31, 32, and 34 and deny NAA’s objections to Defendant’s proposed instruction

number 2.

Saro2 Von Cf fig —
Samuel Der-Yeghiayan? 9 ¥

United States District Court Judge

Dated: A/PV. 6 , 2002



“obtain injunctive or other equitable relief; and . . . recover the greater of .. . treble damages; or .
. .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,” 25 U.S.C. § 305e(a)(1), (2). NAA cites Native American Arts, Inc. v. Bundy
Howard, Inc., 168 F.Supp.2d 905 (N.D. Ill. 2001) in support of its position that it is entitled to
$1,000 per product type per day. In that case the court held that it was clear from the use of the
words “good” and “product” in singular form in the act that Congress intended damages to be
measured according to each product type rather than solely according to the number of days that
products were displayed collectively. Jd. at 913. We disagree and we note that in that case the
court dismissed the possibility that Congress intended damages to be multiplied by the number of
individual items sold or displayed. Jd. The court noted that if Congress intended the act to
expose defendants to the “potentially astronomical liability of $1,000 per day for each individual
product offered for sale or sold, it would surely have specified such extraordinary exposure
explicitly - - and it did not.” Jd. That same logic applies to the interpretation that concludes that
Congress intended to determine damages according to each type of product sold or displayed. In
addition, the Seventh Circuit case United States v. H.B. Gregory Co., 502 F.2d 700, 706-07 (7*
Cir. 1974) which was cited by the court in Bundy Howard Inc. in support of its finding is not on
point on this issue. Jd.

Section 305e(a)(2) of the 2000 act makes no reference to damages for each good sold or
displayed or for each type of good displayed or sold. However, the Section clearly states that the
damages are to be calculated according to the number of days that the offer or display for sale
continues. Simply because the initial portion of Section 305(e)(a) makes reference to a “good”
rather than “goods” does not justify inferring that Congress intended damages to be measured

according to the number of products in violation. The word “good” does not nullify Waldron’s


305e(a), which is clear and unambiguous, verbiage stating “$1,000 per type of product per day”
that Congress chose not to include in the section and we will not do so.

In addition, if damages were calculated according to the number of goods or types of
goods displayed, such a reading of the statute would open the door to various interpretations
resulting in different amounts of damages which would not survive constitutional scrutiny. In
enacting the 1990 Act and 2000 Act, Congress provided for two methods of calculating damages
and gave the option to the plaintiff to pursue the greater of: 1) treble damages, or 2) at least
$1,000 per day on which the offer for sale, display, or sale continues. 25 U.S.C. § 305e(a)(2). In
the 2000 Act, Congress indicated that for purposes of calculating treble damages the defendant’s
gross profits can be the basis for assessing damages. Id.

An analysis of potential liability under each of the two available damage calculation
methods, as illustrated below, demonstrates that under NAA’s interpretation of the statutory
language of “$1,000 per day” the calculation of damages would be outrageous. For example, if a
retailer displayed 10,000 items of various arts and crafts for sale in its store with a price tag of
$20 per item, and during a period of one year it sold all 10,000 items with a gross profit of $10
per item (50%), the profits would be $100,000 for the year. The treble damages therefore would
be $300,000 under the first method of damages enacted by Congress. Under the second method
of damage calculation, if the “$1,000 per day” damage provision were interpreted to mean
“$1,000 per day per item,” then each day the damages would be $1,000 times 10,000 items,
totaling 10 Million Dollars per day even if not a single item was sold. During the course of one
year such damages would be 365 times 10 Million Dollars, totaling over 3 Billion Dollars. We
believe that Congress would not have provided for such a gigantic disparity between the two
methods of calculating damages. Even if damages were calculated according to types of products

as suggested by the plaintiff instead of damages “per item,” it will still result in a huge disparity.



Minute OrdeeForm (06/97)

United States District Court, Northern District of Dlinois

‘Name of Assigned Jud - i Sitting Judge If Oth
rar Magistrate Juage | __ Samuel Der-Yeghiayan than Assigned Judge
CASE NUMBER 01 C 2370 DATE 11/6/2003
CASE Native American Arts vs. Earth Dweller
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.)

DOCKET ENTRY:

(¢3) Oo Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due .

(3) 5 Answer brief to motion due. . Reply to answer brief due. :

(4) a Ruling/Hearing on set for at

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

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

(es) a Trial[set for/re-set for] on at

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

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

OFRCP4(m) (CLocal Rule 41.1 O/FRCP41{aX1) [ FRCP41{a)(2).

(10) Mi [Otherdocketentry] This matter is before the court on plaintiffs Native American Arts, Inc. (NAA)
and Ho-Chunk Nation’s objections to certain proposed jury instructions relating to damages that were
proposed by defendant The Waldron Corporation. Also, before the court is Waldron’s objections to
certain proposed jury instructions relating to damages that were proposed by NAA. For the reasons stated
on the attached memorandum opinion, we overrule NAA’s objections and sustain Waldron’s objections.
Enter Memorandum Opinion.

(11) @ For further detail see Memorandum Opinion attached to the original minute order.

No notices required, advised in open court.
No noti ired, Memorandum Opini :
“| Rindedou eroretiscontrence mob eto
Notices mailed by judge's staff.
Notified counsel by telephone. NOV 0 7 2003
Docketing to mail notices.
Mail AO 450 form. 44YNOS LI4LSIA “SA
Copy to judge/magistrate judge. wet
nid tft I~ AON EO
courtroom
MW deputy’s Shey Vi
initials : - i
Dataltime received in
central Clerk’s Office a



On the other hand, under the second method for calculating damages at $1,000 per day, the above
example would result in a total damages of $365,000 for the year which is comparable to the

$300,000 damages under the first method for calculating treble damages.

IL Section 305¢ of the 1990 Act

NAA also seeks compensation for alleged violations that occurred before the passage of
the 2000 Act. Pursuant to the 1990 Act a plaintiff was entitled to obtain injunctive or other
equitable relief and to recover: “the greater of . . treble damages; or not less than $1,000 for
each day on which the offer or display for sale or sale continues.” 25 U.S.C. § 305e(a)(1) and
(2)(1990). Under the 1990 Act only the Attorney General or an Indian tribe could have
commenced an action on behalf of an Indian arts and crafts organization such as the NAA.
Under the 2000 Act in addition to the Attorney General and an Indian tribe an Indian arts and
crafts organization is authorized to commence an action on behalf of itself. Since the damages
calculations for the 1990 Act and the 2000 Act are virtually identical the above conclusions are
equally applicable to the 1990 Act. The 1990 Act just like the 2000 Act provides that damages
are to be not less than “$1,000 per day.” It does not state damages not less than “$1,000 per
product per day” or “$1,000 per product type per day.” Therefore, for these reasons and the

reasons included above in reference to the 2000 Act we sustain Waldron’s objections.



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

DOCKETED
NOV 07 2093

NATIVE AMERICAN ARTS, INC., AND
THE HO-CHUNK NATION, AN INDIAN
TRIBE RECOGNIZED BY THE UNITED
STATES GOVERNMENT, FOR AND ON
BEHALF OF NATIVE AMERICAN ARTS,
INC.,

Plaintiffs,
No. 01 C 2370

ve

THE WALDRON CORPORATION,

wwe ey wee were ee ew

Defendants.

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiffs Native American Arts, Inc.
(“NAA”), and Ho-Chunk Nation’s objections to certain proposed jury instructions relating to
damages that were proposed by Defendant The Waldron Corporation (“Waldron”). Also, before
the court is Waldron’s objections to certain proposed jury instructions relating to damages that
were proposed by NAA. For the reasons stated below we overrule NAA’s objections and sustain

Waldron’s objections.

BACKGROUND
NAA filed suit against Waldron alleging violations of The Indian Arts and
Crafts Act of 1990 (1990 Act’) and The Indian Arts and Crafts Enforcement Act of 2000 (“2000

; AP



Act”), 25 U.S.C. § 305e. NAA alleges that Waldron sold goods in a manner that falsely
suggested that the goods were made by Indians in violation of the 1990 Act and 2000 Act. This
case was first assigned to Judge Conlon who ruled that the statute is constitutional. Subsequently
the case was assigned to Judge St. Eve who made various rulings including allowing a
representative plaintiff to enter the case. On January 29, 2003, Judge St. Eve ruled on some
objections to proposed jury instructions, However, she declined at that juncture to rule on the
objections that pertained to the issue of whether NAA would be entitled to recover $1,000 per
product that is in violation of the 1990 Act and 2000 Act or whether the NAA would be entitled
to recover $1,000 per day that the offer or sale or display took place. Judge St. Eve indicated that
the parties did not provide sufficient briefing on the issue for her to make an informed decision
and thus she ordered the parties to provide supplemental briefing. NAA makes reference to
“$1,000 per day per product” in Plaintiff's jury instruction numbers 30, 31, 32, and 34. Waldron
makes reference to “$1,000 for each day” in Defendant’s proposed jury instruction number 2. In

the pretrial order both parties have also identified the damages issue as an unresolved legal issue.

DISCUSSION
NAA argues that it should be entitled to damages in the amount of $1,000 per
day per type of product that is in violation of the 1990 and 2000 Acts and Waldron argues that
NAA is entitled to $1,000 per day that products were displayed in violation of the acts. The
Seventh Circuit has not yet addressed this issue and thus neither party has provided controlling

authority to support its position.

L Section 305e of the 2000 Act
Section 305e(a)(1) and (2) of the 2000 Act states that a plaintiff is entitled to: