THE INDIAN ARTS AND CRAFTS ACT: Protecting Genuine Indian-Made Arts and Crafts
September 7, 2012 Comments Off on THE INDIAN ARTS AND CRAFTS ACT: Protecting Genuine Indian-Made Arts and Crafts
The Indian arts and crafts market is known for beautiful works that were handcrafted by Indians. Unfortunately, the market has been diluted by the sale of fake Indian art- and craftworks—fraud that has been described as “rampant.” If you’re an Indian artisan or a tribal official trying to protect genuine arts and crafts made by tribal members, the Indian Arts and Craft Act can help you limit unfair competition by non-Indians, stop fraudulent activity, and preserve your cultural heritage.
The Indian Arts and Crafts Act (“IACA”) was enacted in 1935 and was significantly strengthened by amendments in 1990, 2000, and 2010. Under the 1990 amendment, an Indian artisan or a tribe (for itself or on behalf of an artisan) may file a civil lawsuit alleging misrepresentation of an art- or craftwork as an authentic Indian-made product. This provides the Indian artisan or the tribe protection against the sale of non-genuine art- or craftworks if the seller fraudulently claims the item was made by the Indian artisan or the tribe. The amendment allows for restraining orders to stop the fraudulent claims and for the recovery of monetary damages and attorneys’ fees.
An Illinois-based retailer of authentic Indian arts and crafts, Native American Arts, Inc. (“NAA”), has used the civil action to great effect, filing at least eighty civil suits since 1998. NAA filed these suits to stop competing businesses from wrongfully claiming that their products were authentic Indian art- and craftworks. NAA’s attorney has stated that “the lawsuits have been highly successful [in] obtaining injunctions in almost every case” and that “the defendants have generally complied with the injunctions.” Nonetheless, civil suits can be difficult to pursue because of the time and expense involved.
NAA’s civil suits are not surprising considering the extent of misrepresentation in the Indian arts and crafts market. In a recent report, the U.S. Government Accountability Office (“GAO”) found that the Indian Arts and Crafts Board, a federal agency established under the IACA, received 649 complaints between 2006 and 2011. Of those complaints, 48.9% originated in western and southwestern states. California (60), Arizona (49), and New Mexico (45) accounted for 154 complaints (23.7% of the total). The GAO’s report is available at http://www.gao.gov/assets/320/317826.pdf.
As a “truth-in-marketing” law, the IACA protects Indian artisans and tribes from unfair competition by non-Indians, preserves Indian culture, and promotes tribal economic development. Indian artisans and tribes may want to consider using the IACA’s civil action if they discover that another person is fraudulently claiming that a non-genuine Indian art- or craftwork was made by an Indian or a tribal member. If you would like to learn more about the IACA, please refer to the Question-and-Answer discussion on my firm’s website or contact the Law Office of James D. Griffith, P.L.L.C. using one of the contact options available on the firm’s website.