A federal judge has upheld the constitutionality of a law aimed at protecting American Indian heritage.
Last year, Nader Z. Pourhassan, 38, formerly of Draper, was the first person to be charged with violating the Indian Arts and Craft Act, which makes it illegal to sell anything that falsely suggests being American Indian-produced.
Federal prosecutors claim that for four years Pourhassan sold dream catchers to St. George businesses, passing them off as having been made by American Indians. The dream catchers were made in West Valley City by people of Vietnamese descent, prosecutors contend.
Pourhassan's attorney argued before U.S. District Judge J. Thomas Greene that the case should be dismissed because the law is vague. The phrase "Indian-produced" begs too many questions, wrote attorney James Bradshaw in court documents.
"Is it sufficient that a member of an Indian tribe design and supervise the production? Does the participation of any non-Native American in the production render an item violative of the statute?" he asked.
"For example, if a Native American hand-carved a wooden totem pole, but non-Native Americans assisted in the rough-cutting and subsequently cleaned and varnished the item prior to sale, would the item be 'Indian produced?' " Bradshaw asked the judge.
Greene responded in an opinion made public this week that the phrase "Indian-produced" is not vague.
"In this case, criminal liability attaches only when a person 'knowingly' violates (the statute)," he said. "While one may imagine different variations of how a seller could knowingly lie . . . the phrase does not criminalize a seller's innocent acts which are simply misinterpreted by a buyer."
Wes Milne, owner of Milne Jewelry Co., St. George, said most of the lower-priced Indian souvenirs such as dream catchers and pipes are made by non-Indians.
Carolyn Lema, an owner of Lema Indian Trading Co., Moab, said many customers who are looking for souvenirs don't care where they are made. "If we sell items made by non-Native Americans, we always represent them accurately."
"Every time this issue comes up, it hurts the Native Americans because customers will shy away from from buying," Milne said.
A jury, Greene wrote, would ultimately be responsible to determine whether any particular seller made a knowingly false suggestion about an item for sale.
While Greene rejected Pourhassan's motion to dismiss the indictment on the claim of vagueness, the case will continue in federal court.
If convicted, Pourhassan could face a maximum penalty of five years in prison and a fine of $250,000 on each of two counts.
E-MAIL: mtitze@desnews.com