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common ground

Ruins and Renewal
Summer/Fall 1998, vol. 3(2/3)

Online Archive

*  Navajo Mask Case Passes Legal Test: Supreme Court Lets Trafficking Conviction Stand

(photo) Lloyd Masayumptewa, member of the ruins stabilization crew at Wupatki National Monument.

"Ethnic identity is accompanied by ethnic stigmatization, and the [ruins of the] Basque hotels, set within the larger building community that is the West, are reminders of the both the region's cultural diversity and cultural divisions. "

Thomas Carter

by Joseph Flanagan

The Supreme Court has declined to review the 1996 conviction of Richard Corrow, found guilty in the first jury trial under the criminal provisions of the Native American Graves Protection and Repatriation Act. In 1995, Corrow purchased a number of Navajo ceremonial masks from the widow of a religious leader (known as an hataali, or chanter) who used the masks in a healing and rain-making ritual known as the Nightway ceremony. Corrow then attempted to sell the masks through East-West Trading Co. of Santa Fe, which sells Native American arts and crafts. Under NAGPRA, the masks are considered items of cultural patrimony that are illegal to buy or sell (see summer 1996 Common Ground).

With a successful prosecution led by Assistant U.S. Attorney Paula Burnett, Corrow was sentenced in federal district court to five years' probation and 100 hours of community service (941 F. Supp. 1553 [D.N.M. 1996]). He appealed the verdict in the Tenth Circuit Court of Appeals, which upheld the lower court's ruling (119 F3d 796 [1997]). Corrow's attorneys argued that NAGPRA is unconstitutionally vague, particularly in its definitions of "cultural patrimony" and "cultural items" (NAGPRA defines "cultural patrimony" as "having ongoing historical, traditional, or cultural importance" to a tribe). They reasoned that these categories are unreasonably broad, and do not give fair notice of what objects are protected or what conduct is illegal under the act. According to the brief filed on Corrow's behalf, "there is nothing unique about the [masks] that would give any person notice of their ‘ongoing historical, traditional, or cultural importance,' their cultural patrimony, or their inalienability." NAGPRA, they argued, encourages arbitrary and discriminatory enforcement, because authorities generally cannot determine which objects fit the definitions of "cultural items" or "cultural patrimony."

In declining to review Corrow's case, the Supreme Court let the lower courts' ruling stand. Thus, the only circuit to review a NAGPRA criminal conviction has found that the terms "cultural items" and "cultural patrimony" are not unconstitutionally vague, and that they give legal authorities ample objective guidance to enforce the law. NAGPRA's language, the Tenth Circuit ruled,