The Indian Arts and Crafts Act of 1990: Fit for Purpose?

November 8, 2023

Nez Perce (Nee-Me-Poo) National Historic Trail Traveling Displays

By Jemima Gravatt 

Fake Native American artwork is still a major problem, both on an economic basis for its impact on the Native American market and on a moral basis as it impacts the cultural protection and promotion of Native American culture. The Indian Arts and Crafts Act of 1990 (IACA) is a piece of federal legislation to supposedly protect against forgeries via its prohibition of attributing a work done by a Native American that was not actually done by a Native American (whether by oneself or attributing it as belonging to another person who is not Native American). The Act was initially controversial due to its delimiting of who an ‘Indian’ is as required by the Act and the purported quantity of litigation stemming from this issue.^[1] However, these highlighted issues seem to be the least of the legislation’s concern. In light of the recent (light) sanctioning against Seattle-based Jerry Van Dyke in May 2023, we may assess the issues that have come to the forefront. Namely, as this article will discuss, a lack of sanctioning and an overall lack of enforcement. Whether this is the law’s fault or not is a point to be answered. A call for due diligence on the behalf of shopkeepers to investigate their suppliers’ claims of Native American heritage could be a potential welcome amendment.

Needle in a haystack: The Van Dyke case of 2023

In May 2023, Seattle-based artist Jerry Van Dyke pleaded guilty to being in violation of the Indian Arts and Crafts Act of 1990 for falsely attributing his artwork as belonging to the Nez Perce tribe. Van Dyke had falsely claimed to be Nez Perce and was thus in violation of the Act.^[2] The artist was originally charged in 2021 alongside Lewis Anthony Rath, who misrepresented himself as belonging to the San Carlos Apache Tribe.^[3] Other recent instances of this crime have included the late Jimmie Durham, who proclaimed himself to have Cherokee identity and controversially positioned his very successful career off the fact – although he was never prosecuted.^[4] Amongst these widely reported cases, the discussion as to this issue remains rather small. There are many cases that are either not reported at all, not known, or have charges dropped completely.

Legislative history: The Act itself

The Indian Arts and Crafts Act of 1990 is a truth-in-advertising federal law, meaning it mandates that sellers do not falsely misrepresent the marketing of art pieces and objects as being Native American. The original piece of legislation was passed in 1935, coming amongst FDR’s New Deal package of reforms, including the Indian Reorganization Act of 1934 (IRA), one year prior. The IRA’s funding for the repurchasing of land came hand-in-hand with the IACA’s similarly retributive goals, which positions the Act in its intentional setting today.

However, the Act itself needed updating since 1935. Aside from the linguistic updates to align with correct, less problematic language, the Act had a reboot to its 1990 model, which is what stands structurally today. One issue that the 1990 Act, and subsequently the 2000 enforcement act and 2010 amendments act have tried to remedy is providing increased clarification of terms. The perpetual issue of enforcement, which will be discussed below, has been viewed as best remedied through promoting understanding of the Act. In fact, the Board itself, founded alongside the Act, continually promoted public understanding and promotional activities in the 1990s with this issue in mind. As of March 2023, the Senate have been discussing amendments and the formation of the ‘ARTIST Act of 2023’ to promote enforcement through increased federal agent power including the ability to withhold pieces suspected to be fakes.

Aside from expanding definitions to bolster the Act’s workability, the Act overtime has seen a drastic increase in the fines it grants as maximums on offenders – even considering inflation.

Whilst the 1935 Act would not subject a fine exceeding $2,000, the 1990 Act updated this to be $250,000 for a first-time violation and $1,000,000 for subsequent violations.^[5] This reflects an increased understanding of the importance of remedying this issue for Native Americans.

The protection against unfair competition: The economic benefit

The Native American art market is a multi-million-dollar area and makes up a good proportion of the Native American economy across America. Thus, it is obvious to see how allowing the proliferation of forgeries and artists presenting themselves as Native Americans is an issue due to its anticompetitive effect. The legislation throughout its history, has always recognised this, even as the principal reason. It calls for the promotion of economic growth and protection. The fact that it is important to Native Americans economically, as their land is continually taken by big business, is also recognised by the global art market who strive to profit off the association and visuals of Native American artwork. The Dikers, owners of the largest private collection of Native American art, were recently found to be in possession of many Native American pieces with gaps in their history – lending suspicion.^[6] Many of the works were lent to the Metropolitan Museum of Art (The Met) over the years, and, as was the case with Jimmie Durham, who’s works could sell on average up to $187,500, it is clear that non-Native Americans have an interest in these pieces. It is all the more important that their sphere is protected against the leveraging of their culture for non-Native American economic gain. As Secretary Deb Haaland wrote, as the first Native American leading the Department of the Interior: ‘Native art is a critical part in telling the story of this country and can only be told by Native artists.’^[7] It is not fair on a moral ground for anyone other than Native Americans to profit.

Enforcement of the legislation

Despite the very real plea, both behind the legislation and upon oneself whilst thinking about this issue, the enforcement of this rationale has been lackluster. Despite the sanctioning of Van Dyke, he only received eighteen months’ probation which is a fairly light sanctioning, particularly when it was as well reported as it was – this impact was more than most though. The way the Act functions on a state level is through either ‘tipping-off’ or investigation by federal officers or local enforcement. For example, in the case of Van Dyke, it was through an undercover U.S. Fish and Wildlife Service individual.

One can ‘report a potential violation’ and educating the public in the 1990s was a huge part of this: encouraging people to know what the problem was and come forward. However, as the enforcement issue became greater, it was realised that a top-down approach would be required. If we consider that by May 17, 2000, only 45 complaints had been received, then this approach is not particularly successful, whether through a lack of knowledge, resources, or will.^[8] In the 2010 amendments, ‘a federal law enforcement officer’ was better defined, and today, there is an extension from purely defining, but also expanding enforcement power via allowing federal agents to withhold potential fakes.

A further big issue is the disparity between state enforcement. If the Act is relying on a system of investigation by local authorities, the proliferation of these fakes may or may not be investigated. As an example to meditate on the success of these cases there are two comparative ones from Alaska. In Anchorage, a man named Lee Screnock was prosecuted for misrepresenting hundreds of his own carvings as being made by an Alaska Native artist.^[9] Whilst in Skagway, an Alaskan city, shop owner Rosemary Libert was not found guilty.^[10] In the first case in Anchorage, Lee Screnock was first charged under violation of a different Act – the Marine Mammal Protection Act in 2018, and only later the IACA. Furthermore, he was selling the pieces as his own. In comparison, Rosemary Libert’s case, which she was let off for, involved her as a shopkeeper saying the words ‘mm’ when asked by a customer whether the artist who created the works was Native American. Said amidst a busy shop, and not quite saying ‘no’ constituted enough to acquit her of the charges. These instances show the disparity and arguable untidiness of the legislation’s effect. Furthermore, the case in Skagway demonstrates a strong need to implement due diligence on behalf of the seller and shop owner. Currently, a shop owner can state that they didn’t know a work was Native American, which is arguably a large omission in the legislation and a fixable way of stopping the proliferation of fakes.

Conclusion

The issue of the proliferation of fakes is not unique to America. Canada, itself is arguably even further behind in lacking any similar legislation on the matter.^[11] Yet, as the lack of cases in the U.S. shows and the rather shaky enforcement, the Indian Arts and Crafts Act of 1990 is far from perfect. Jerry Van Dyke’s case received about as much coverage as has been received and yet his punishment was very light. Considering the moral and economic implications of this crime, it should be considered that until the sanctions are raised in the Act’s enforcement, violating the Act will not be taken seriously. Furthermore, in order to ensure more widespread checks by enforcement officials, government spending on this measure may need to be raised.

Additional Readings:

More news stories on the Van Dyke 2023 case:

https://www.theartnewspaper.com/2023/05/24/artist-falsely-claimed-native-american-heritage-sentenced

More stories on the 2021 case:

https://www.theartnewspaper.com/2021/12/13/artists-charged-with-faking-indigenous-heritage

 

About the Author

Jemima Gravatt is a Master of Laws student at the LSE in London. She is also a volunteer at the National Portrait Gallery and received her undergraduate law degree from Durham University. She is passionate about art and how it intersects with the law, in particular, with new issues relating to AI and digital art. She is also interested in repatriation issues with her thesis being on the return of looted artifacts from museums to their origin countries.’

Sources:

^[1] William J Hapiuk Jr, Of Kitsch and Kachinas: A Critical Analysis of the Indian Arts and Crafts Act of 1990 (2001) accessible at https://www.jstor.org/stable/1229497; Jon Keith Parsley, Regulation of Counterfeit Indian Arts and Crafts: An Analysis of the Indian Arts and Crafts Act of 1990 (1993) American Indian Law Review Vol. 18, No. 2 487.

^[2] Tessa Solomon, Seattle Artist Who Falsely Claimed Native American Ancestry Sentenced to 18 months of Probation (May 25 2023) accessible at https://www.artnews.com/art-news/news/seattle-artist-claimed-native-american-ancestry-sentenced-1234669653/

^[3] Rich Calder, Two Seattle artists charged with faking Native American heritage (December 11 2021) accessible at https://nypost.com/2021/12/11/lewis-anthony-rath-52-and-jerry-chris-van-dyke-charged-with-faking-native-american-heritage/

^[4] America Meredith, Why It Matters that Jimmie Durham is Not a Cherokee (July 7 2017) accessible at https://news.artnet.com/opinion/jimmie-durham-america-meredith-1014164

^[5] (n 4)

^[6] Kathleen Sharp, ‘Where did the Metropolitan Museum of Art get its Native American objects?’ (25 April 2023) accessible at https://www.theguardian.com/us-news/2023/apr/25/metropolitan-museum-of-art-native-american-objects-provenance

^[7] Acee Agoyo, ‘Fake Indian Art still a major problem despite federal responsibilties’ (March 14, 2023) accessible athttps://www.indianz.com/News/2023/03/14/fake-indian-art-still-a-major-problem-despite-federal-responsibilities/

^[8] Hapiuk (n 1) 1043.

^[9] Michelle Theriault Boots, Former Anchorage shop owner sentenced in Alaska Native art misrepresentation case (March 11, 2021) accessible at https://www.adn.com/alaska-news/crime-courts/2021/03/11/former-anchorage-shop-owner-sentenced-in-alaska-native-art-misrepresentation-case/

^[10] Paula Ann Solis, Skagway shopkeeper wins federal Native art scam case (September 3, 2016) accessible at https://www.juneauempire.com/news/skagway-shopkeeper-wins-federal-native-art-scam-case/

^[11] Claire Voon, Indigenous Canadian artists pressure government to curtail sales of counterfeit First Nations art (14 July 2022) accessible at https://www.theartnewspaper.com/2022/07/14/indigenous-artists-canada-demand-regulation-counterfeit-first-nations-art