In re Estate of Tasunke Witko, a/k/a Crazy Horse v. Hornell Brewing Co. (updated) | Joseph William Singer | October 28, 2014


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In re Estate of Tasunke Witko, a/k/a Crazy Horse v. Hornell Brewing Co. (updated)

The facts of this case are based on the case of In re Estate of Tasunke Witko v. The G. Heilman Brewing Co., (Rosebud Sioux Sup. Ct., May 1, 1996) and Hornell Brewing Co. v. Rosebud Sioux Tribal Court, 133 F.3d 1087 (8th Cir. 1998). However, some of the facts in the problem are different from those in the actual cases. To the extent the facts diverge, you should use the facts stated in this problem; you may also rely on the facts in the decided cases to the extent that they are consistent with this problem.

Tasunke Witko, also known as Crazy Horse, is one of the best-known Oglala Sioux Warrior-Chiefs, perhaps most famous for his defeat of General George Custer at the Battle of Little Big Horn in 1876. He lived all his life on the Great Sioux Nation Reservation which includes the present day Rosebud Sioux Reservation. Born into a family of respected holy men, a boyhood vision fated him to be a chief.   As a boy, his father named him “Crazy Horse,” a name that had been the name of his father and grandfathers.  Crazy Horse held the Wasichu (white men) in great disdain and refused to have continuous contact with the Wasichu or be photographed.  He abhorred the use of alcohol and encouraged his people to stay away from the drug, which he saw as the white man’s tool for debilitating the Lakota. He viewed alcohol as a kind of evil spirit. Use of Crazy Horse's name in connection with the sale of liquor therefore inflicts a kind of personal and spiritual harm upon the members of the Sioux Nation.

The Hornell Brewing Co., doing business as Ferolito, Vultaggio and Sons, Inc., Heileman Brewing Co., Inc., and John Ferolito and Don Vultaggio ("Breweries") began manufacturing, selling and producing an alcoholic beverage called "The Original Crazy Horse Malt Liquor" ("Crazy Horse Malt Liquor" or the "beer") in many states.  Heileman brews the beer and the beer is bottled or canned in containers which are owned by Hornell and provided to Heileman. Basically Heileman’s involvement with the sale and distribution of Crazy Horse Malt Liquor is limited to selling the brewed beer to Hornell to be packaged in Hornell's containers.  Hornell does no business in the state of South Dakota or on the Rosebud Sioux Indian Reservation (the "Reservation"); nor is Crazy Horse Malt Liquor available for sale either in South Dakota or on the Reservation.

Crazy Horse Malt Liquor was the first in a series of alcoholic beverages “honoring” the American West which Hornell planned to market and was distributed in 40 oz. bottles replicating whiskey bottles used in the 19th century.

The label on the bottle reads:


“The Black Hills of Dakota, steeped in the history of

the American West, home of Proud Indian Nations.

A land where imagination conjures up images of blue clad

Pony Soldiers and magnificent Native American Warriors,

A land still rutted with wagon tracks of intrepid pioneers.

A land where wailful winds whisper of Sitting Bull.

Crazy Horse and Custer.

A Land of character, of bravery, of tradition.

A land that truly speaks of the spirit that is America.”


In addition to an Indian in a warbonnet, the bottle features other Native American symbols, including a buffalo, calf’s skull, eagle feathers, ceremonial pipe, and medicine wheel.   Crazy Horse Malt Liquor is distributed and sold in 25 states, including the state of Texas, but not the state of South Dakota.  The beverage has never been sold within the boundaries of any of the Sioux reservations, including the Rosebud Sioux Indian Reservation.

Seth H. Big Crow, Sr., a member of the Rosebud Sioux Tribe and a resident of the Rosebud Sioux Reservation, is a direct descendant of Tasunke Witko. He applied for and was named administrator of the Estate of Taskunke Witko by the Rosebud Sioux Tribal Court. Big Crow then requested that Hornell cease using the name of Crazy Horse in connection with the sale of liquor. He claimed that Crazy Horse, in addition to being a great warrior,  is a spiritual figure of the Lakota who abhorred alcohol and fought for it to be banned by the Lakota.  Hornell asserted that it is honoring Crazy Horse as a leader and, consequently,  declined to pull the beer off the market.

Seth Big Crow, Sr., as official representative of the Estate of Tasunke Witko, which is in probate in the Rosebud Sioux Tribal Court, sued Hornell and Heileman on behalf of the Estate, himself and other heirs of Crazy Horse who reside upon the Rosebud Sioux Reservation, as well as the Cheyenne River and Pine Ridge Indian Reservations, all located within the exterior boundaries of the State of South Dakota. The Estate claimed that the Breweries' use of the name “Crazy Horse” in connection with its sales of beer infringed on spiritual and personal property rights in the decedent’s name protected by Lakota customary law that are trans-generational and are kept by the Estate, on behalf of the tiospaye (extended family) of Crazy Horse, for at least seven generations and that such rights did not terminate upon Crazy Horse’s death.  The Estate further claimed that its rights in the name of Crazy Horse include the right to govern and protect the use of that name from nonconsensual commercial use. The Estate claimed that these property rights were recognized by tribal law and custom and that they are similar, but not identical to, the right of publicity recognized under the common law of many states in the United States. In addition, the Estate alleged that the Company had engaged in tortious and defamatory conduct under Lakota law.

Defendant Breweries argued that the Rosebud Sioux Tribal Court did not have personal jurisdiction or subject matter jurisdiction over them and that, even if the tribal court did have jurisdiction over the defendants and the claim, that the court should apply the law of the places where the beer is sold, rather than the law of the domicile of Crazy Horse upon his death. Some states do not allow the right of publicity to be inherited or devised if one did not exploit the commercial use of one’s name within one’s lifetime; others would not allow a right to last more than 100 years after the death of the person whose name is being used. Defendants argue that they have the right to use the Crazy Horse name and image in states in which the right of publicity is not recognized.

In a decision upheld by the Rosebud Sioux Supreme Court, the Rosebud Sioux Tribal Court recognized a customary and common law right owned by the descendants of Crazy Horse and of the Rosebud Sioux Tribe itself to control the use of the name of Crazy Horse, at least to the extent of preventing its nonconsensual commercial use. However, because Defendants do not sell the beer on the Reservation, the tribal trial court found that it lacked personal jurisdiction over defendants. That ruling was overturned on appeal by the Rosebud Sioux Supreme Court. Defendants then sued the Estate and the Rosebud Sioux Supreme Court in federal district court seeking a ruling that the tribal courts lacked both personal jurisdiction over them and and subject matter jurisdiction over the claim. Defendants prevailed in federal district court in a ruling that was affirmed on appeal by the Eighth Circuit.

Assume that the Estate has now refiled the lawsuit in federal court in Texas – a state in which Defendants do sell Crazy Horse Malt Liquor. Publicity rights law is created by state common law and thus, unlike copyright and patent law, is not predicated on federal statutes that contain explicit time limits on the property rights granted to copyrighted and patented materials. Assume that the federal district court certified the question to the Texas Supreme Court as to whether common law publicity rights in Texas survive death and would persist more than 100 years after the death of a celebrity whose name is exploited for commercial purposes, and that, although Texas recognizes the right of publicity, the state supreme court ruled that such a right does not exist more than 50 years after the death of the celebrity. See Tex. Prop. Code §§ 26.001 to 26.015 (defining such a right for persons who died after 1937 and limiting it to 50 years). In contrast, the Rosebud Sioux Tribal Court had ruled that tribal law would not only recognize such a right and that the right persists forever.

Publicity rights are personal property rights whose ownership on death are traditionally governed by the law of the decedent's domicile at the time of death. The Estate therefore argues that the federal trial court in Texas should choose to apply the law of the Rosebud Sioux Tribe to find that a publicity right still exists and is controlled by the Estate and to grant the remedy of an injunction against use of the name of Crazy Horse in connection with the sale of liquor anywhere in the United States. The Breweries argue that the court should apply, not the law of the domicile of Crazy Horse at the time of death, but the law of each place where the liquor is sold or advertised. The Breweries therefore argue that Texas law should apply to its sales of the beer in Texas.

If the court determines that Rosebud Sioux law applies and that defendants therefore infringed on publicity rights recognized by tribal law, the next question is what law should apply to determine the appropriate remedy.  Plaintiffs would seek a nationwide injunction against the sale of Crazy Horse Malt Liquor and argue that Rosebud Sioux law should apply on the question of damages for infringement of the property right. Under Rosebud law, such an injunction would be granted; in addition, damages could be obtained, first, to recover the profits derived from the sale of the beer; second, to compensate the family for emotional distress and spiritual harm caused by the use of the name in conjunction with the sale of liquor; and third, if the acts are willful and malicious, punitive damages can be assessed and recovered for unconscionable conduct. Assume however, that under Texas law either no injunction would be given at all or it would be limited to preventing sales on the Rosebud Reservation. In addition, under Texas law, the amount of damages for infringement of publicity rights is limited to disgorgement of profits derived from use of the name; no dignitary, emotional distress, or punitive damages may be recovered.


1.  Should the federal district court apply Rosebud Sioux tribal law, recognizing the right of the Estate to stop the use of the name of Crazy Horse in connection with the sale of liquor, or should it apply the law of Texas to sales of the beer in Texas ?


2. If the district court in Texas chooses to apply the law of the domicile of the decedent at the time of death, should it issue an injunction ordering the Breweries to stop selling Crazy Horse Malt Liquor either on the Rosebud Reservation or within the state of Texas or nationwide, and should the amount of allowable damages be governed by the law of the Rosebud Sioux Tribe or by the respective laws of the states where the beer is sold?


π = Seth Big Crow/Estate of Crazy Horse
∆ = Hornell Brewing Co.


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October 28, 2014

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