*By Lillia McEnaney
Center for Art Law previously reported In Brief that, in March 2016, the U.S. Attorney’s Office in the District of Alaska charged a handful of individuals with violating the 1990 Indian Arts and Crafts Act (IACA). Following is an in depth background of the case and a discussion of relevant statutes
The Indian Arts and Crafts Act
Passed in 1990, the Indian Arts and Crafts Act is a federal truth-in-advertising law that prohibits the sale of goods that incorrectly claim to be Native produced. In the United States, there are 1.9 individual Native people who are members of the 567 state and/or federally recognized tribes. If an artist or an art dealer fraudulently claims that any of their wares were produced by an individual or group of Native Americans, they are in direct violation of IACA.
The current law is based off a 1935 Act of the same name that aimed to “promote the development of Indian arts and crafts.” This original legislation also created the Indian Arts and Crafts Board (IACB). The IACB’s purpose is to enforce IACA and ensure the “genuineness and quality” of Native works on the art market. Today, the IACB has the power to refer complaints to the FBI or to the Secretary of the Interior for investigation. After reviewing the investigatory report issued by either the FBI or the Secretary of the Interior, the IACB may recommend to the Attorney General that charges be filed against individuals who violate the IACA. Additionally, the IACB can create and register trademarks that are authentically Native American or Alaskan. In 2000, Congress amended the IACA to improve its enforcement procedures.
If found guilty, an individual who violates the IACA may face up to a $250,000 fine or imprisonment for no more than five years. If found guilty of more than one charge, that person may be fined up to $1,000,000 and imprisoned for up to 15 years.
Past IACA Cases & Criticism
A 2011 Government Accountability Report showed that the IACB received approximately 650 violation complaints between 2006 and 2010. The report indicated that 150 of these complaints suggested substantial IACA violations and 117 cases needed additional investigation. After receiving a complaint, the IACB can either pass the information to the FBI, to the Secretary of the Interior, or recommend to the Attorney General that charges be filed. Despite the fact that a violation of Indian Arts and Crafts Act is a federal matter, none of these cases have ever filed in federal court.
In total, only five people in five separate cases have been found guilty of violating the IACA between 1990, the year Congress passed the IACA, and 2010. Two of these cases were dismissed and violators in the remaining three were sentenced to either probation or up to 13 months’ jail time.
Few Indian Arts and Crafts cases result in prosecution because the IACB focuses on preventative education rather than practical enforcement of the law. Reportedly, one of the Board’s most common methods of investigation is to send a form letter to suspected offenders. The letter detailed the guidelines put forth by IACA and described the penalties of violation.
Additionally, the U.S. Government Accountability Office (GAO) suggested that reliable and objective data on the size of the market for Indian arts and crafts is sparse. Limited market data makes it even more difficult to propose a plan to stop this practice because it is not always easy to tell the difference between a fake and an authentic piece, even for experts. Wayne Bobrick of Wright’s Indian Art in Santa Fe has said that “[t]here are some things that are obvious, but if they do it well enough, anyone can be fooled.” Additionally, though it is most common for non-Natives to claim to be Native, it is also common for some Native Americans to buy imported goods and pass them off as their own, authentic work, according to Tony Eriacho, a Native artist and activist. Taking these factors into account, the GAO also determined that conducting a more thorough and complex study would be costly and would most likely produce similarly biased results.
One substantial criticism of the IACA is that the Act does not protect artists that do not belong to federally recognized tribes. Currently, there are approximately 250 tribes in the United States that are not recognized by the Bureau of Indian Affairs or by their respective state’s government. Artists that belong to any of these communities are not protected by the Indian Arts and Craft Act, and are not even able to market their arts and crafts as “Indian-made.” This has massive implications, as many non-federally recognized Natives are no longer able to sell their authentic wares in fear of criminal prosecution. Lack of representation here is, of course, just one of many legal disadvantages that unrecognized tribes currently face.
Case Study: Five Charged with Selling Non-Genuine Native Goods
In May 2014, a team comprised of the Department of Justice, the IACB, and the Alaska Attorney General’s Office Consumer Protection Unit began an investigation of four Alaskan business owners under the accusation of violating the Indian Arts and Crafts Act. The investigation was prompted by complaints filed by summer tourists in Alaska. The tourists were allegedly told that various bone carvings that were for sale were made by Alaskan Native peoples. This inspection, spearheaded by the DOJ, is the result of an investigation conducted by the United States Fish and Wildlife Service (USFWS) that previously found these businessmen guilty of misrepresenting their goods. An undercover USFWS agent paid $1,985 for the non-genuine pieces at the store.
The people charged include “Vinod ‘Vinny’ L. Sippy, 38, d.b.a. Diamond Island, Icy Strait, and Gemstone Heaven; Juneau resident and business operator Norma M. Carandang, 60, d.b.a. Northstar Gift Shop; Puerto Rican resident and Ketchikan business owner Gabriel T. Karim, 33, d.b.a. Alaskan Heritage; Skagway resident and business owner Rosemary V. Libert, 56, d.b.a. Lynch and Kennedy Dry Goods, Inc.; and Libert’s seasonal employee, a resident of Huntington Beach, California, Judy M. Gengler, 65.” They are charged with, according to the DOJ, “the illegal misrepresentation of bone art carvings as made by Alaska Natives or Indians, when in fact they were made by local non-native carvers.”
When brought before the court, Sippy pleaded guilty, while Carandang pleaded not guilty. Because Sippy pleaded guilty, the arraignment also served as his sentencing. He “agreed to pay a $3,500 fine, make a $3,500 donation to the IACB, distribute a public apology letter and he will serve five years of probation.”
At the time of writing, the case was pending in the U.S. District Court for the District in Alaska.
UPDATE: On September 2, 2016, Ms. Libert was found not guilty of misrepresenting Native produced art in federal court on Friday. See Libert Letter to the Editor of the Skagway News.
In the 21th century, enforcement of IACA and regulating markets is becoming more difficult due to the growing online economy. E-commerce websites such as Etsy and eBay have “rapidly outpaced the law.” Though IACA protective mechanisms are strong, its Board may need to reimagine the way in which the law is enforced in today’s digital economy.
The enforcement of IACA relies heavily on the public. When purchasing Native goods, purchasers should make sure to ask their art dealer for the artist’s information and for a written certificate for authenticity. If this cannot be provided, purchasers should consider giving this information to the IACB through a formal or informal complaint. Consumer information plays a vital role in the enforcement of the IACA and in maintaining a fair market for Native communities.
- UPDATE: J. Rogers, “Skagway shop owner found not guilty of misrepresenting Native art”, Alaska Public Media (Sept. 7, 2016), available at http://www.alaskapublic.org/2016/09/07/skagway-shop-owner-found-not-guilty-of-misrepresenting-native-art/.
- J. Kimball, The Indian Arts and Craft Act: Trademark Misfit or Just Missing the Mark? (Kent School of Law Honors Scholars Student Paper, 2006), available at http://www.kentlaw.edu/honorsscholars/2006students/writings/Kimball_paper.htm
- Jennie D. Woltz, The Economics of Cultural Misrepresentation: How Should the Indian Arts and Craft Act of 1990 Be Marketed? (Fordham Intellectual Property, Media and Entertainment Law Journal, 17(2), 2006), available at ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1396&context=iplj.
- Department of Justice, Investigation results in charges against four business owners and an employee for violations of the Indian Arts and Crafts Act (2016), available at https://www.justice.gov/usao-ak/pr/investigation-results-charges-against-four-business-owners-and-employee-violations-indian.
- 25 U.S.C. § 305(a)-(d), Indian Arts and Crafts Board; creation and composition; per diem payments
- 18 U.S.C. § 1159, Misrepresentation of Indian produced goods and products
- Barron Jones, Faux Native: On Prosecuting Indian arts and crafts counterfeiters, Alabi (June 27-July 3, 2013, 22.26), alibi.com/news/44863/Faux-Native.html.
- United States Government Accountability Office, Report to the committee on Natural Resources, House of Representatives, (2011), available at www.gao.gov/assets/320/317826.pdf
- The Indian Arts and Crafts Act (IACA), 25 U.S.C. § 305-305(e), available at https://www.doi.gov/iacb/act.
- The Indian Arts and Crafts Board (1935), available at uscode.house.gov/statviewer.htm?volume=49&page=891.
- 106 Cong. 2d Session, (2000) Amendment to the IACA, avaiable at https://www.gpo.gov/fdsys/pkg/CRPT-106srpt452/html/CRPT-106srpt452.htm.
- Who We Are, Bureau of Indian Affairs, http://www.bia.gov/WhoWeAre/index.htm
- Reinvirogating the Indian Arts and Crafts Act, http://indiancountrytodaymedianetwork.com/2016/05/12/reinvigorating-indian-arts-and-crafts-act
*About the Author: Lillia McEnaney is an undergraduate at Hamilton College where she is studying Archaeology and Religious Studies and was recently appointed a Casstevens Research Scholar. Lillia is a research assistant in Hamilton’s Religious Studies Department, the Blog Intern for the Council for Museum Anthropology, the Webmaster for Art/Place Gallery, a 2016 Summer Intern for the Smithsonian’s National Museum of the American Indian, and an intern for the nonprofit organization SAFE/Saving Antiquities for Everyone. Lillia may be reached at: email@example.com.
Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.