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- By Darren Thompson
SANTA FE, N.M.—On Friday, August 18, the U.S. Department of the Interior will host its final public meeting on efforts to change regulations to the Indian Arts and Crafts Act. The Act protects the authenticity and marketability of products claiming to be Indian-made.
The meeting is part of the Bureau of Indian Affairs’ (BIA) effort to change aspects of the Indian Arts and Crafts Act (IACA), by including additional items that would be eligible to be marketed as an Indian Product, who can produce Indian arts and crafts products, and if Native Hawaiian Organizations should be included in the law.
Meridith Stanton, the U.S. Department of the Interior’s Director Indian Arts and Crafts Board, said in an email to Native News Online that the BIA’s proposed revisions to the current IACA regulations focus on expanding what is considered Indian art and craftwork to include products ranging from non-Indian made products to agricultural and food items. Besides expanding the definition of Indian arts and crafts, Stanton said she cannot discuss other pending changes.
Suzan Harjo, a Cheyenne and Hodulgee Muscogee Presidential Medal of Freedom recipient, spoke of the changes to regulations of IACA in an interview with Native News Online and said many of the changes would expand protections for mediums, or Indian products, not previously protected, but still fall short. The proposed changes also include protections for film, television, podcasts, books, cartoons, and news media, but do not include performing arts or academia.
“Why stop at hot dogs and leave out academia and performing arts?” Harjo asked about the additional proposed Indian products. “If you take care of performing arts, it takes care of a lot of the Hollywood problem.”
Harjo, who lobbied for the passing of IACA’s 1990 Amendment, has been advocating for additional protections and enforcement of law for many years. When IACA’s Amendment was signed in 1990, it expanded the original 1935 law by providing criminal and civil penalties for marketing products as "Indian-made" when products are not made by Indians, as defined by the Act. Under the law, an Indian is defined as an enrolled member of any federally or officially state recognized tribe in the United States, or an individual certified as an Indian artisan by an Indian tribe.
In other words, it’s a federal Indian law that acknowledges state-recognized tribes. Members of state-recognized tribes are authorized to exhibit, promote, market, produce, and sell Indian arts and crafts like members of federally recognized tribes. Other federal Indian laws do not apply to state-recognized tribes; the Indian Child Welfare Act of 1978 does not apply to state-recognized tribes.
Since the law was passed, Tribal Nations have not had input of enforcing the law when individuals pose as a member of a tribe. In 2021, the National Congress of American Indian passed a resolution asking for the Indian Arts and Crafts Act Board (IACAB) to update its regulations of who is protected under the law because of the widespread use of “Indigenous,” “Descendant,” “Ancestral Ties to,” or “Adopted by.” The resolution was aimed to prevent fraudulent artists from mis-representing protected Indian arts and crafts and to emphasize that the IACA, a public law, is not enforced.
NCAI also passed a resolution in 2020, opposing the use of “Indigenous affiliation” or “Indigenous” in the same manner as someone enrolled in a federally recognized tribe or a state recognized tribe for employment or grants in the arts.
“NCAI calls on museums, research institutions, arts organizations, and employers who promote the history, art, language, and culture of the United States’ Tribal Nations to require proof of tribal enrollment in a state or federally recognized Tribal Nation from individuals who present themselves as Native professionals and artists, and as a prerequisite to eligibility for grant funding or any professional alliance as a Native professional or artist with said museums, research institutions, federal or state grant programs, and prior to any public listing as Native American (American Indian or Alaska Native) affiliation,” the resolution states.
The 1990 law also paved the way for an individual Indian person, a federally recognized Tribe, or an Indian arts and crafts organization to file a civil suit in federal court against a perpetrator.
“Is this enough authority for an individual, or a Tribe, to go after a perpetrator on their own?” Harjo questioned the protections, noting that the matter is a civil and not a criminal action. “In order for Tribes to have authority to enforce this law as well, they must be permitted across jurisdictions, across state lines, to pursue offenders.”
By allowing Tribes to bring the cases in Tribal court, the law would also recognize Tribal jurisdiction, as the Tribal Section of the Violence Against Women Act (VAWA) that returned some criminal jurisdiction to Tribes.
“This also allows Tribes to go after offenders who defame the Tribe’s name and image,” said Harjo.
If successful, the Indian Tribe, individual Indian, Indian arts and crafts organization, or United States may request that the court order the relief including actual damages, punitive damages, and/or forfeiture of proceeds, but not a quantifier. “If the law includes triple the damages, that’s a good intent for Tribes and others to bring their lawsuits against perpetrators.”
“Given that the Department of Interior is in the comment period, citizens, Tribal Nations and Tribal citizens should closely review the revisions,” said Honorable Danielle Tasheena Finn, an Adjunct Professor at Sinte Gleska University and Judge for the Cheyenne River Sioux Tribe in an interview to Native News Online. “Civil actions may have big implications for enforcement.”
“It only took 33 years to bring revisions to the people for discussion,” Harjo said.
“Updating the regulations does not make changes to the existing law. Our goal in updating these regulations is to better support Native artists and craftspeople, so it is critical that we hear their feedback,” said BIA’s Director of Public Affairs Joshua Barnett in an email to Native News Online. “This draft rule is intended to be a starting point for this conversation.”
Tribal consultations began in early April and will end in August. The DOI is accepting written comments until the end of business day on Friday, September 1, 2023 and should be emailed as soon as possible to [email protected].
The meeting at the Santa Fe Indian Market is scheduled from 1:00 pm to 4:00 pm Mountain Time at the Institute of American Indian Arts’ (IAIA) Museum of Contemporary Native Arts, in conjunction with the 2023 Santa Fe Indian Market.
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