Do the laws on counterfeit Native art go far enough?

Ubiquitous fakes have far-reaching impacts on Indian Country.

 

“This guy showed me a pendant he was wearing, he’d bought it in some flea market,” Ben Nighthorse Campbell recalled. “I looked at and said, ‘I don’t want to hurt your feelings but it’s not very well made: the stones aren’t set well and it’s not a quality piece of jewelry’.”

“It should be,” the stranger replied. “You made it!”

Sure enough, the piece had Campbell’s name on it, but he knew it wasn’t one of his. He never bothered to ask what the stranger had paid for the pendant.

Under the Indian Arts and Crafts Act, it is illegal to market or sell fake Indian art as the real thing. However, since 1996 there have been more than 1,700 complaints of alleged violations resulting in a total of 22 prosecutions in New Mexico, Alaska, Utah, South Dakota and Missouri while another 400 complaints have yet to be reviewed. At present, only two U.S. Fish and Wildlife Service officers are dedicated to investigations that can range from locally produced bogus items to international forgery rings unloading knock-offs on naïve consumers.

According to New Mexico Sen. Tom Udall, counterfeit jewelry could make up as much as 80 percent of what is sold as “Indian made” in a market valued at approximately a billion dollars a year. To stop the surge of fake Indian art, the U.S. Senate Committee on Indian Affairs is taking another look at the IACA.

Created in 1935 as part of the Depression Era New Deal worker protections and later amended during both Bush presidencies with the help of Sen. Campbell, the act serves as a truth-in-advertising law. But eight decades of chronic underfunding and little-to-no enforcement have spurred many Native arts entrepreneurs to demand the federal government get real about enforcement. “It’s one thing to pass legislation with good intentions,” said Dallin Maybee Chief Operating Officer of Southwestern Association of Indian Arts. “But without appropriations for enforcement, that’s all it is.”

Native American crafters and artists at the Palace of the Governors in Santa Fe, New Mexico.

Earlier this month, New Mexico Senator and Committee on Indian Affairs vice-chair Tom Udall held field hearings on modernizing the act in Santa Fe. However, according to artists, the hearing left much to be desired. “Though well intentioned, the hearing appears to be an opportunity lost,” said Seattle attorney Gabriel Galanda. “Virtually no attention was given to internet commerce which is the primary catalyst of counterfeit Indian art these days.”

According to Louie Gong of Eighth Generation, a Native American design emporium with the tagline “Inspired Natives, Not Native-Inspired,” lawmakers need to make a legislative fix to prohibit non-Native companies from taking advantage of Google adware and search terms. “‘Native,’ ‘Native Art,’ all of these terms addressed by the IACA are already being dominated by non-Native companies,” Gong said. “Most people are finding our work and products via Google search.”

“E-commerce is where the action is,” said Dallin Maybee. “E-Bay pages created to sell (counterfeit native art) are everywhere; there’s no way all those are real. The pages can disappear after selling the fakes.”

The Southwestern Association of Indian Arts produces the annual Santa Fe Indian Market, known for its strict artist verification standards, but Maybee says the internet is much more elusive and hopes that tribal courts with sophisticated judicial systems could be authorized to prosecute IACA infractions in the same way that some tribes have been able to deal with violations of the Violence Against Women Act. In 2013, the VAWA was expanded to restore the right of tribes to prosecute non-tribal members for certain crimes. “From a pro-sovereignty model, I say let’s look at VAWA as a model,” Maybee said. “IACA violations are an economic, health and welfare issues. Allow us to exercise our inherent sovereignty and deal with (fakes) ourselves.”

Counterfeit art has far-reaching repercussions on all areas of the Indian art market. Traditional Navajo weavers, for example, have had to compete with knock-offs manufactured in Guatemala, Nepal, India, Romania, Japan and Thailand to name a few, while a town in the Philippines went to extraordinary lengths to cash in on Native art by changing its name to “Zuni” after the Pueblo of Zuni in New Mexico so it could label its mass-produced facsimiles of katsina dolls and Native jewelry as “Made in Zuni” to circumvent the IACA’s labeling provisions.

Meanwhile, on Zuni Pueblo, the Zuni tourism division estimates that “about 80 percent of Zuni families are involved to some extent in the production of arts and crafts. Zuni may have one of the highest concentrations of craftspeople per capita in the United States.”

In 2004, Northwest Coast silversmith Allen Thompson was approached to travel to Indonesia to teach workers there how to copy his style. “The dealer said he’d pay for my trip and it’d be ‘a great way to get Northwest Coast Native artwork produced for the Vancouver 2010 Winter Olympics,’” Thompson recalled. “I wasn’t interested.”

Thompson was also told that workers trained to rip off his jewelry style would receive compensation of 8 cents an hour.

In recent years, successful cases have centered on bone art carvings in Alaska, fraudulently marketed as Indian made, as well as the use of fraudulent tribal identification cards used to sell artwork. Individuals representing themselves as Indian artists have also been convicted. However, online transgressors have yet to be prosecuted, and fines levied at mass producers can be absorbed as business expenses. That could soon change, though.

Later this year, federal prosecutors will bring five defendants to court in Albuquerque on “an international scheme to fraudulently import and sell Filipino-made jewelry as Native American-made.” The accused face up to $250,000 in fines and up to five years in prison.

However, under President Donald Trump’s proposed budget, the Department of Interior faces a $1.4 billion cut. That means the Indian Arts and Crafts Board, which is housed under Interior, may see even more hurdles to enforcing the law. “As things stand now,” said Campbell, “(The) IACA is just another one of those laws that keeps the honest people honest.”

Frances Madeson is a Santa Fe-based freelance journalist, a non-Native member of the Native American Journalist Association, and the author of the comic novel Cooperative Village.

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