By: Anna Hohag | Intern | anna.hohag@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com
The United States has enacted laws that aim to protect the integrity of Indian arts and artifacts through multiple laws including the Indian Arts and Crafts Act (IACA), the Native American Graves Repatriation Act (NAGPRA), and the Bald and Golden Eagle Protection Act. Unfortunately, some things within the United States boundaries and more often on the international art market, these laws become ineffective and need to be strengthened.
The Act of 1990 is a truth-in-advertising law that prohibits misrepresentation in marketing of Indian arts and crafts products within the United States. Through this law, it is illegal to offer or display for sale, or sell any art or craft product in a manner that falsely suggests it is Indian-produced, an Indian product, or the product of a particular Indian or Indian Tribe or Indian arts and crafts organization, resident within the United States. The purpose of the IACA is to protect both the consumer and the Indian artisan from disingenuous merchants looking to make a profit off of the misrepresentation of Native art. Examples of traditional items frequently copied by non-Indians include Indian style jewelry, pottery, baskets, carved stone fetishes, woven rugs, kachina dolls, and clothing. These copied items are often cheaply made knock offs whose retailer sells as authentic Indian art. Then IACA was intended to instill integrity back into the Indian art market and discourage falsely advertised products.
This law helps create a space in the US market for Indian artisans to compete by showcasing not only their artistry, but also their culture. And who better to showcase Native culture than, you guessed it, an actual Native American person.
However, The IACA does not always work as intended. Recently, a Federal Court in Illinois dismissed a claim brought under the IACA for lack of standing. The claim was brought by Native American Arts, Inc., an Indian owned business that sells Indian arts and crafts, alleging that Peter Stone Jewelry International, an international jewelry wholesaler, sold knock-off Indian jewelry entitled the Wolfwalker Collection. Peter Stone advertised the Wolfwalker collection as “Authentic Native American Jewelry” and “Native American Designed” at tradeshows and on their website, although the designer, Wendy Whiteman, was not “Indian” as defined in the IACA. It was even apparent that the jewelry was mass-produced as each had a sticker on them reading “Made in Thailand.”
Under the IACA, an Indian is defined as a member of any federally or officially State recognized Indian Tribe, or an individual certified as an Indian artisan by an Indian Tribe. Whiteman was none of these. Still, the federal court dismissed the case, reasoning that Whiteman’s statement that she chose her Wolfwalker name because her “spiritual roots are Native American” was “perfectly consistent with” being Native American. I don’t know where else you can get away with such a blanket definition of “Indian.” Like others recently in the media, the judge did not recognize the fallacy of such “spiritual ethnicity.”
With the reasoning the court uses here, anyone can be Indian. In fact, it would completely void the intent of the IACA when it intentionally created a definition of “Indian” as a member of any federally or officially State recognized Indian Tribe, or an individual certified as an Indian artisan by an Indian Tribe. By that same reasoning, what stops any foreigner from coming into the United States and claiming that their “spiritual roots” are in America and therefore they should be considered American citizens?
Even more worrisome is the international market on Indian arts and crafts. What might be viewed to one person as a simple arts and crafts object readily available for sale and trade, may to a tribe be much more significant than that, and potentially taboo to be traded. For instance, a Paris auction house is in the news for refusing to stop selling Native American masks. Even after widespread condemnation from the U.S government and others since 2013 for selling Native American artifacts to buyers around the world, the Drouot auction house has instead increased its auctions of the items. If that wasn’t worse enough, French auctioneer Alain Leroy justifies the auctions, arguing that “it’s legal” and that “the tribes are shocked, yes. But to each his own morality.” By Leroy’s reasoning, these type of French auctioneers believe tribes should actually be grateful the French elite who have bought and removed these sacred, forbidden artifacts, “safeguarding” them in private ownership. For that, Leroy believes they “deserve some respect.”
Respect?
The Tribes, their thousands of years of culture, and their Indian artisans are what deserves respect. Isn’t it they who deserve to be safeguarded from these profit seeking merchants and auction houses from exploiting their art and sacred objects? Some even argue that this is a form of cultural genocide.
Anna is a citizen of the Bishop Paiute Tribe and born and raised in the Eastern Sierras in Bishop, CA. She is entering her second year of law school at the James E. Rogers College of Law at The University of Arizona. She is a Board Member on the California Indian Law Association and the 2015-2016 National Native American Law Students Association Area 1 Representative. Before attending law school she worked for the Pala Band of Mission Indians as the Tribal Liaison. Anna is a recipient of the 2015 Procopio Native American Internship.
Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.
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