Native American Arts and Crafts Act

Authenticity of Native American arts and crafts should be a huge interested to anyone who cares about the future of Native culture. People are concerned about the disconnect our world often has between what is real and what is not. Technology, consumer goods, even our food is largely mass produced. We question what it is made of and if it is “real” food. Authenticity comes with an intrinsic value we sense may be missing from much of what we purchase. When it comes to items of culture, of artistic expression, that authenticity becomes even more valuable.

Protecting Native American artists from the cheap, mass produced imitations of their work was the goal of the Native American Arts and Crafts Act. It was also intended to boost the market for Native artists and their work, creating a means of economic development for many tribes. Originally passed in 1935 and amended in 1990, the act defines what work can be marketed as Native American and makes it “illegal to market an art or craft item using the name of a tribe if a member, or certified Indian artisan, of that tribe did not actually create the art or craft item”. Prior to this many vendors had been selling items imported from other countries or made by those who had no Native blood and marketing them as authentic art from specific tribes. Native American artists had little means to fight these imported rip-offs or to denounce the vendors who sold them as authentic crafts.

The act was designed to protect not only the art of the tribal members, but their cultural and intellectual property rights as well. Its definition is broad, covering “all Indian and Indian-style traditional and contemporary arts and crafts produced after 1935″ which are marketed by someone in the United States.

This law also makes a very specific regulation in regards to the affiliation of the artist. For example, no item can be labeled as “Hopi” if it was not produced by a member of the Hopi tribe. Even someone who is a legitimate member of another tribe cannot market their replicas of Hopi arts as authentic under this guideline. Nor can someone use the vague term of “Indian” for what they are marketing unless the artist is a member of a specific tribe. Customers who feel they have been misled in the authenticity of an item they purchased may demand a refund of the purchase price. They can also file fraud complaints with the Better Business Bureau and the local District Attorney’s office.

One of the major benefits of the 1990 amendment to the Native American Arts and Crafts Act is the penalties which can be incurred by those who violate it. Prior to 1990, fines were limited to five hundred dollars and a possible prison sentence of six months or more. With the 1990 amendment, first time violation of the act could incur fines of up to $250,000 along with a possible prison term of five years. It also added possible civil penalties. In 2010, the act was again amended to increase the fines to as much as five million for violations beyond the first one and raising the possible jail sentence to fifteen years. This amendment provided for other damages as well, including attorney’s fees and punitive damages.

The benefits of the protection provided with the Native American Arts and Crafts Act, however, may be in danger of going away. Another amendment to the act was recently proposed, which will redefine what constitutes a Native artist. This proposal opens the doors once again for those without Native blood or affiliation to claim a false authenticity for what they sell.

Proposed by Nick Rahall, a representative from West Virginia, the amendment would allow members of “non-profit Indian organizations and individuals who are not enrolled members of a recognized tribe to claim authenticity”. Under this proposed change, anyone who is a direct descendant of a tribal member may claim their work is authentic, even if they themselves do not qualify for tribal membership. Authenticity may also be claimed by those who are members of an “Indian organization”. What constitutes an “Indian organization” is vaguely defined in the proposal.

Along with a lack of definition, the proposal also states that such organizations do not have to be recognized by any tribal nation. This would open the door to almost any individual or business to claim authenticity without having to prove their affiliation to a Native American tribe. It would also render the Native American Arts and Crafts Act useless, according to a statement by Dr. Jessica Metcalfe, an artist and member of the Turtle Mountain Chippewa tribe. Metcalfe believes profit is the motivation behind the proposed changes to the act. She has a word of warning, however, for those who seek to profit, saying “our ethnicity isn’t for sale”.

It remains to be seen whether those who seek to undermine the provisions of the law will succeed. For now, the act continues to protect Native artists from those who would imitate their work and steal their culture. Those who wish to acquire authentic Native art are wise to request written certification of authenticity, even for items purchased at craft fairs or outdoor events. Any vendor who is complying with the provisions of the act should be able, and willing, to supply such certification.