Congress passed the Indian Arts and Crafts Act (“Act”)in 1935 to “promote the economic welfare” of Indians “through the development of Indian arts and crafts and the expansion of the market for the products of Indian art and craftsmanship.”
The Act also created the Indian Arts and Crafts Board (“Board”), empowering it to refer complaints of counterfeit Indian goods to the Federal Bureau of Investigation and to administer a system of acquiring trademarks for Indians in order to ensure “genuineness and quality.”
Although the Act was amended in 1990 and again in 2000, e-commerce has since rapidly outpaced the law, especially thanks to non-Indian companies that misappropriate Indian images, symbols, motifs, designs, dress, and related practices—and get away with it.
Through discussion with Indian artists about their challenges and with the Board about its realities, it is clear that it is time to reinvigorate the Act. Better enforcement of the law and enhancement of the federal regulations found at 25 C.F.R. § 309 will fulfill the promise of the Act.
Consider Pendleton Woolen Mills, a 100% non-Indian owned company that currently markets 290 products as “Native American,” including 233 as “Native American Inspired.” But with the exception of 15 of 120 wool blankets, Pendleton’s products appear to be non-Indian made.
It gets worse.
Pendleton’s marketing of this product violated the Indian Arts and Crafts Act, 25 U.S.C. §305e because it did not sufficiently make clear that the Blanket was not produced by genuine Indian artisans and therefore did not qualify as an ‘Indian Product’ as defined by the Act.
Under the settlement, Pendleton paid “$41,250 to the Red Cloud Indian School’s The Heritage Center in Pine Ridge, South Dakota”—a proverbial slap on the hand—but still proceeded to advertise their non-Indian made blankets and goods as “Native American”—primarily as “Native American Inspired.”
Pendleton’s use of the words “Native American” remains illegal. 25 U.S.C. §305e; 25 C.F.R. § 309.24(a)(2). Adding the word “Inspired” to “Native American” does not make the company’s advertisements legal. Id.
And Pendleton is not the lone offender. According to Dr. Jessica Metcalfe of Beyond Buckskin—which honors and promotes “cultural appreciation, social relationships, authenticity and creativity”—a search on Etsy for “Native” brings up over 100,000 non-Native products.
You should not condone illegal sales activities on your site and you should not promote items that violate trademark laws and/or the federal Indian Arts and Crafts Act.
Etsy’s dismissive response: “Etsy cannot judge the legality of items or the seller’s ability to legally sell an item.”
On a recent conference call, the Board’s Director said that the Board is aware of cultural appropriation via Etsy and has also been in communication with the company. But like Pendleton, Etsy and its droves of non-Indian business partners carry on violating the law anyway—at the expense of Indian artists.
According to Dr. Metcalfe, such widespread, blatant cultural misappropriation “drowns out the actual Native American artists, and perpetuates consumer confusion.” The Act was designed, 80 years ago, to remedy precisely those problems, but the law is not being used as Congress intended.
Enter Nooksack artist Louie Gong , who spearheads the grassroots “Inspired Natives” movement. As he explains:
The Inspired Natives Project is about helping talented artists and craftspeople bring their work to consumers with efficiency, for fair compensation, and without sacrificing their artistic principles. It’s also an effort to highlight the cultural appropriation practiced by large companies that choose to use fake cultural art instead of partnering with Native artists.
Another “inspired Native” is Northern Cheyenne fashion designer Bethany Yellowtail, who grew up on the Crow Reservation. Bethany shares how in late 2014, she was making a collection inspired by her great grandmother’s traditional beadwork from the early 1900s.
But before she could release her new collection, during New York Fashion Week in March 2015, she watched a group of non-Indian models walk down the runway, wearing fashions manufactured by international fashion company KTZ that depicted her great grandmother’s designs.
The misappropriated fashion line was dubbed “Native American Inspired,” touted as “a tribute to the primal woman, indigenous to this land, who evolves into a sexualized, empowered being,” and made available for online purchase. Bethany describes it as “a slap in the face,” which is putting it mildly.
Bethany considered copyright protection, even litigation. But daunted by the associated direct expenses and opportunity costs, not to mention the emotional toll, Bethany decided against legal action.
Individual artists like Louie Gong and Bethany Yellowtail should not be forced to take on the likes of Pendleton, Etsy or KTZ—or Forever 21, or Victoria’s Secret, or Paul Frank—the list goes on and on. Their highest and best use is making Indian art and crafts; it is not litigating or creating national public awareness campaigns. They should be left to simply create—empowered by the Act, not frustrated by it.
Although the 2000 amendments to the Act give Louie or Bethany legal standing to sue non-Indian violators for the misappropriation (25 U.S.C. § 305e(d)(1)(C)), civil litigation in federal court against deep-pocketed corporations and their top-shelf corporate defense lawyers is cost-prohibitive.
The mighty Navajo Nation and its Attorney General’s Office can go toe-to-toe with Urban Outfitters and its Big Law lawyers from a level battlefield. But the battlefield for Louie and Bethany is rather uneven.
So, the United States, as Trustee for Louie, Bethany and other Indian artists, should take on the likes of Pendleton and Etsy. Congress passed the 2000 amendments to accomplish just that; “to encourage greater enforcement of the Act” by the Board. The FBI is no longer required for offenders to be punished, and would-be offenders to be deterred.
The Act is powerful, as written. The Board just needs to wield it.
Barring that, the Act’s regulations could use a simple enhancement by the Board: Adding the terms “Native,” “Native inspired,” and “indigenous,” and any variations thereof, at 25 C.F.R. Part 309.24 as words that identify “Indian products” within the meaning of the Act. Although we cannot predict the next non-Indian-inspired advertising tagline devised to circumvent the Act, that is no excuse to demur.
It is time for renewed federal action to prevent known or foreseeable tribal cultural misappropriation via the Internet. Indian artists should be allowed to assume their rightful place at the center of the digital Indian arts and crafts market—not relegated to its margins. Let’s reinvigorate the Act.
Gabriel S. Galanda is the managing partner of Galanda Broadman, PLLC, www.galandabroadman.com. He belongs to the Round Valley Indian Tribes.