Congress toughens Indian Arts and Crafts Act, aimed at halting misrepresentation

By Sue Major Holmes, AP
Saturday, September 18, 2010

Amendments toughen anti-fraud arts and crafts law

ZUNI, N.M. — Zuni silversmith Tony Eriacho stands behind tables of American Indian jewelry and crafts that are not what they seem.

He picks up a necklace of Indian-style fetish animals made in the Philippines; dangles an earring with colored stones made of plastic; explains that what looks like solid turquoise is glued-together dust of turquoise and other rocks; uses a magnet to pick up beads supposedly made of silver, which isn’t magnetic.

What bothers Eriacho isn’t just that these objects look like something they’re not. It’s that too often, they’re fraudulently marketed as authentic, a violation of federal law.

Falsely suggesting goods are Indian- or Alaska Native-made could be harder to get away with now that Congress has approved changes to the 1990 Indian Arts and Crafts Act.

The revisions, approved in July as part of the Tribal Law and Order Act, allow all federal law enforcement officers, not just the FBI, to investigate suspected violations. That includes officers working for the Bureau of Indian Affairs, the National Parks Service and U.S. Customs and Border Protection.

Co-sponsor Sen. John McCain, R-Ariz., said the changes were needed because the FBI’s other responsibilities, including investigating terrorism and violent crime in Indian Country, stalled enforcement of the arts and crafts law.

A Senate Committee on Indian Affairs report from September 2008 found that while millions of dollars are diverted each year from Indian artists to counterfeits, “few, if any, criminal prosecutions have been brought in federal court for such violations.”

McCain hopes broadening the number and types of officers who can investigate will lead to more prosecutions.

The amendments also alter the sentencing structure for violators, linking prison terms and fines to the value of the art. The change is designed to give law enforcement more flexibility in pursuing small-time offenders.

Previously, the law called for fines of up to $1 million for a first-time violation by a business; an individual could face a $250,000 fine and up to five years in prison, regardless of the value of what was sold.

Now, those penalties apply for first-time offenders only when the misrepresented goods are valued at $1,000 or more.

For items worth less than $1,000, individual first-time violators face up to a year in prison and a $25,000 fine; a business could be fined up to $100,000. Penalties go up with subsequent violations.

Zuni artist Nancy Westika, who makes fetish necklaces, is skeptical the revisions will make a difference. In the past, she said, little has been done.

“Every time somebody says that they’re going to enforce it we say, ‘Yeah, we’ll see. We’ll see.’ Mostly it’s just been talk.”

But Gail Chehak, executive director of the Albuquerque-based Indian Arts & Crafts Association, said giving more agencies enforcement power will help. The trade group was formed in 1974 in response to imported fakes.

“We don’t want to tell people what to make or what to sell, but we want to make sure people represent it honestly,” Chehak said.

Misrepresentation of Indian crafts has been a problem for decades. Jewelry, pottery, baskets, woven rugs and kachina dolls often are copied — to the point some artists don’t want their designs photographed for fear they’ll show up in fakes passed off as genuine.

There are no firm figures on fakes, although trade groups estimated 10 years ago that at least half of all Indian-style art sold in the United States is counterfeit.

“As long as you know you’re buying plastic, that’s your choice. But if you don’t ask, they’re not going to tell you,” said Eriacho, president of the Council for Indigenous Arts and Culture.

He’s seen fakes sold as genuine Indian artwork at businesses and flea markets, and even by Indian artists.

“You see Native people selling these for short-term gain. It hurts all of us. It hurts the legitimate artist. It hurts the legitimate business that’s selling the real thing because you can’t compete,” Eriacho said.

Complaints about misrepresentation come from all over, but many focus on the Southwest because of the volume of Native American art there, said Meridith Stanton, director of the Indian Arts and Crafts Board within the Department of Interior.

Some complaints go to investigators, but when the board feels someone unwittingly misrepresented something, it sends a letter citing federal law.

“Once a merchant, producer or other business becomes aware of the Arts and Crafts Act and penalties, they usually have a pretty quick turnaround,” Stanton said.

Eriacho said part of the problem is consumers not knowing what they’re buying.

“All this is counterfeit,” he told visitors viewing his display at the recent 16th Zuni Arts and Crafts show in the red mesas and pinon-covered hills of northwestern New Mexico.

He said it’s not rude to ask how something was made, what it’s made of, and by whom.

Eriacho also criticized Customs and Border Protection’s separate regulations governing imported Indian-style goods.

Customs requires Native American-style jewelry and crafts to be indelibly marked with their country of origin, but says if that’s “technically or commercially infeasible,” the article may be marked with a string tag or adhesive label.

Eriacho turns over two Zuni-style necklaces. Each has the words “sterling silver” stamped on the back, but “made in the Philippines” appears on removable labels.

“Why didn’t they stamp the country of origin instead of a peel-off sticker?” he said.



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