United States v. Corrow

119 F.3d 796 (10th Cir. 1997)

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Nature of the Case

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Facts

Ray Winnie was a hataali, a Navajo religious singer. Winnie chanted the Nightway and other Navajo ceremonies wearing Yei B'Chei originally owned by Hosteen Hataali Walker. Yei B'Chei or Yei B'Chei jish are ceremonial adornments. A hataali passes the Yei B'Chei to a family or clan member who has studied the ceremonies or loans the Yei B'Chei to another Navajo clan. Winnie acquired his Yei B'Chei from a different clan during his hataali apprenticeship. When Winnie died, he left no provision for the disposition of his Yei B'Chei, and no family or clan member requested them. D, the owner of Artifacts Display Stands is an afficionado of Navajo culture and religion. D traveled to visit Mrs. Fannie Winnie, Mr. Winnie's 81-year-old widow, chatting with her; her granddaughter, Rose Bia; and other family members: a great-granddaughter, Harriette Keyonnie; and a son-in-law. Mrs. Winnie displayed some Navajo screens and robes, and D inquired about the Yei B'Chei. The Winnie family revealed the Yei B'Chei, twenty-two ceremonial masks, and permitted D to photograph them. D wanted to buy them and deliver the Yei B'Chei to a young Navajo chanter in Utah to keep them sacred. D paid $10,000 for the Yei B'Chei, five headdresses, and other artifacts. D drafted a receipt, and Mrs. Winnie, who spoke no English, placed her thumbprint on the document after Ms. Bia read it to her in Navajo. The East-West Trading Company contacted D telling him that a wealthy Chicago surgeon was interested in purchasing a set of Yei B'Chei. The surgeon was an undercover police officer. The officer agreed to a purchase price of $70,000 for the Yei B'Chei, $50,000 for D, and a $20,000 commission to East-West's co-owners. D was arrested at the local airport with the goods in his possession. D was charged with trafficking in Native American cultural items in violation of 18 U.S.C. § 1170, 25 U.S.C. §§ 3001(3)(D), 3002(c), and 18 U.S.C. § 2; and Count two for selling Golden Eagle, Great Horned Owl, and Buteoine Hawk feathers protected by the MBTA in violation of 16 U.S.C. § 703, 16 U.S.C. § 707(b)(2), and 18 U.S.C. § 2. The trial was mostly the testimony of expert witnesses clashing over whether the Yei B'Chei constitute 'cultural patrimony' protected by NAGPRA. Having concluded they do, the jury convicted D of illegal trafficking in cultural items, D was sentenced to probationary terms and one hundred hours of community service. D asserts the court erred in failing to dismiss Count one on the ground the NAGPRA definition of cultural patrimony is unconstitutionally vague.