The opinion of the court was delivered by: Amy J. St. Eve, District Judge.
Native American Arts, Inc. ("NAA") has sued The Waldron Corporation ("Waldron") for violation of the Indian Arts and Crafts Act of 1990 (the "1990 Act") and The Indian Arts and Crafts Enforcement Act of 2000, 25 U.S.C. § 305e. Judge Conlon previously ordered a bifurcated trial on the issues of liability and damages. The parties have submitted proposed jury instructions. The Court addresses the objections to Plaintiff's Jury Instruction No. 8 below.*fn1
Plaintiff's Jury Instruction No. 8 states, in relevant part:
This is an action for alleged violations of the
Indian Arts and Crafts Act which provides that an
Indian Arts and Crafts Organization may bring an
action against a person who, directly or indirectly,
offers or displays for sale or sells a good 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.
Defendant objects to this instruction on two grounds. First, it argues that the reference to the terminology "directly or indirectly" is not appropriate, because that language was not contained in the statute or regulations until after November 9, 2000, and at least some of the conduct and sales took place before the amendment on that date. Second, Defendant claims that the statute should not be applied retroactively to allow Plaintiff to seek damages for Defendant's conduct that occurred before the statute was amended to afford Plaintiff standing to bring a lawsuit.
I. Addition of "Directly or Indirectly"
Defendant's first objection to Plaintiff's Jury Instruction No. 8 is overruled. From the face of the statute, the addition of the words "directly or indirectly" did not change the substance of the statute. As the legislative history makes clear, the addition of this language merely clarified the statute:
[T]o enhance the ability of the plaintiff to assess
and calculate damages, the phrase "directly or
indirectly" will be added after the phrase "against a
person who." This provision clarifies that suit may
be brought against a manufacturer and/or supplier
when the plaintiff is not in direct competition with
the manufacturer or supplier.
Senate Report (Indian Affairs Committee) No. 106-452, Oct. 2, 2000.
II. Retroactive Application of Amendment
Defendant's second objection is sustained. As an initial matter, retroactive application of a statute or an amendment "is not favored in the law." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988). In fact, there is a "presumption against retroactive legislation [that] is deeply rooted in our jurisprudence." Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 (1994). "Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." Id.
When assessing the potential for retroactive application of a statute, the Court looks to the face of the amended statute to determine if Congress "has expressly prescribed the statute's reach." Stone v. Hamilton, 308 F.3d 751, 754 (7th Cir. 2002). "When congressional intent is clear as to the issue of prospective versus retroactive application, then this intent controls." Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929, 932 (7th Cir. 1992) (citing Kaiser Alum. & Chem. Corp. v. Bonjorno, 494 U.S. 827, 838, 110 S.Ct. 1570, 1577, 108 L.Ed.2d 842 (1990)). The amended ...