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COPYRIGHT 2001 Stanford Law School
INTRODUCTION
Measured by the symbolic arithmetic of identity politics, 1990 certainly seemed a good year to be an Indian.(1) On prime-time television, Native American actress Elaine Miles portrayed the serene, wise, and mystical Marilyn Whirlwind on the Emmy Award-winning series "Northern Exposure." In Hollywood in October of that year, actor and director Kevin Costner released "Dances With Wolves" to rave reviews of his "sensitive" portrayal of Indians. Filmed in both English and Lakota (with subtitles!), the movie would later capture the 1990 Academy Award for Best Picture.(2) There was even an Indian on Capitol Hill. Ben Nighthorse Campbell, a Northern Cheyenne award-winning jewelry maker, served as Congressman from the state of Colorado.
And in the closing days of the 101st Congress, a bill sponsored by Campbell--the Indian Arts & Crafts Act CIACA" or "Act")--aimed at ridding the $800 million Native American handicraft industry of cheap imitations imported from overseas, passed both houses unanimously.(3) On November 29, 1990, President George Bush signed the IACA into law, thereby making it a federal felony punishable by a quarter million dollar fine and five years in prison for anyone other than Indians recognized by an Indian tribe to sell (or even display for sale) handicrafts as "Indian.(4) Plus, the Act provides Indians with a private cause of action to go after counterfeiters and imitators in federal court.(5) One member of Congress hailed the IACA as "a truly bipartisan effort that will provide much needed support and protection for an irreplaceable part of American culture, and a valuable,' national resource: native American arts and crafts."(6)
Visibility in the dominant culture. Political representation in the halls of Congress. Legislation aimed squarely at economic justice and cultural preservation. It seemed to add up to a very good year indeed.
Appearances, though, can be deceiving. And events in the last month of 1990 proved the Indian Arts and Crafts Act to be just such a deception. Two days after President Bush signed the law, the IACA claimed its first casualty.
On December 1, 1990, the Museum of the Five Civilized Tribes in Muskogee, Oklahoma, closed its doors, uncertain whether it, as a museum, would fall under the broad and vague language of the Act and, if it did, fearful that its collection might not pass muster under the new law. While the museum was certain that "real" Indians had created the art it displayed, it was uncertain whether these artists would be deemed "Indian" under the terms of the IACA. Simply put, the museum had never inquired whether each artist whose work it displayed was formally recognized by a tribe.(7) Because of the "stringent" fines, the museum "did not want to be a test case [under the IACA]."(8) The museum director explained the closure decision: "If you took the law as ... written ... it had what I call a witch-hunt or bounty-hunter clause. That allowed an individual to come in, and if they saw what they considered a violation [of the IACA], they could file a complaint--a civil lawsuit or a criminal charge."(9) Two days on the books, and already, the IACA had generated controversy--an ominous portent of things to come.
In fact, if calculated today, after a decade of twists and turns, the Indian Arts & Crafts Act of 1990 adds up to a law of good intentions and unintended consequences. It is more than a little ironic that this law, sponsored by the only Native American member of Congress and aimed self-consciously at preserving the Native American way of life, has become a source of contention, strife, and discord among Native Americans.
The most vexing problem lies in the Act's definition of "Indian" as only those persons enrolled in, or certified as an artisan(10) by, a federally or state-recognized Indian tribe.(11) To be sure, Indian tribes are the bedrock institutions of federal Indian law,(12) and federal courts have consistently affirmed the authority of an Indian tribe to determine its own membership as one of a tribe's most basic powers.(13) Defining "Indian" by reference to tribal enrollment, then, appears imminently reasonable, if not legally compelled. Problems arise, however, because this is not the only way that federal law defines "Indian,(14) and even under this rubric, variation in enrollment criteria among Indian tribes results in wide-ranging definitions of "Indian.(15) Moreover, ethnological definitions that take into account ancestral and kinship factors, and racial definitions that take into account blood quantum, do not necessarily map onto legal ones, thereby making some persons "Indian" ethnically or racially but not politically or legally.(16)
As the leading treatise on Indian law explains, when "tribal membership as determined by the Indian tribe or community itself" is the "essential element" of the definition of "Indian," "a person of complete Indian ancestry who has never had relations with any Indian tribe may be considered a non-Indian for some legal purposes."(17) The regulation of the Native American arts and crafts market by the IACA is just such a legal purpose. When it comes to making and selling Indian arts and crafts, a non-enrolled Indian ceases to be Indian.
There are no definitive statistics on the number of individuals of Indian descent who are not enrolled, or who are not eligible to be enrolled, in an Indian tribe.(18) There are myriad reasons why individuals might face these situations, many due to vagaries of federal or tribal law.(19) Nor is there any way to know precisely how many of these individuals, for whatever political or ideological reason, simply refuse to seek enrollment in a tribe,(20) and, while it should go without saying, there is no law requiring them to do so.
All of these individuals, however, are forbidden under the IACA to offer for sale any art or craft product as "Indian." Worse, should they do so, the IACA criminalizes their behavior and subjects them to potential felony prosecution by the state and civil action by authorized "Indian" plaintiffs or the Attorney General. Ironically, Ben Nighthorse Campbell, as the award-winning jewelry maker in his pre-politician days, would have found himself facing the same legal plight, had the IACA been in effect then: For most of his jewelry-making career he was not enrolled in an Indian tribe; he became an enrolled member of the Northern Cheyenne tribe only two years before embarking on his political career.(21)
Compounding matters, for much of its existence, the IACA was legally unenforceable. Although the threat from overseas was characterized in 1990 as so dire as to call for immediate action, the IACA was unenforceable for its first six years, as the Indian Arts & Crafts Board ("IACB"), the tiny Interior Department agency charged with carrying out much of the IACA, lacked the funds and workforce even to write the required regulations that interpret the Act. Despite its legal unenforceability, the IACA still had a "chilling effect" and led to ad hoc "enforcement."
In another ironic twist, the first civil cases filed under the IACA were not brought against the nefarious importers from overseas--or even the pesky unenrolled Indians. Instead, like any rational civil plaintiff, the first Indian tribe to bring suit under the IACA went after deep-pocket defendants. In 1998, the Ho-Chunk Nation sued national retailer J.C. Penney for $240 million and national discount chain Wal-Mart for $120 million in federal court in Illinois.(22)
Ironies aside, this note tells the story of an ill-conceived law and historically ignorant, philosophically unreflective lawmaking. While at first blush the tortured life of the Indian Arts & Crafts Act appears to be a story ripped out of the headlines about 1990s-style identity politics, political correctness, and strident multiculturalism, it can also be understood as a story about the difficulties of employing legal strategies for cultural survival. And it is the story of the struggle for identity in a globalizing world marked by changes in labor and capital that can impact even the smallest group of Indians on a reservation in the Southwest.
Informed by historical inquiry and drawing on critical theory, this note examines the notion of "traditional Indian arts and crafts." Such an exercise reveals that a complex, rich, inventive mixing and a web of interactions-entrepreneurial, cooperative, appropriative--among a host of institutions, individuals, and the state have created what we now understand as "Indian arts and crafts." In light of this analysis, the underlying premise of the IACA--that the making and selling of Indian arts and crafts must be restricted to tribally affiliated Indians because those arts and crafts represent ancient tribal traditions--begins to lose its strength.
This note concludes that the Indian Arts & Crafts Act of 1990 is flawed because it fails to acknowledge the historical development of both Indian tribes and Indian arts and crafts and to appreciate fully the dialogical ways that contemporary Indian identity is constructed. Moreover, the note questions the efficacy of litigation and prosecution as tools for cultural survival. This note argues that the IACA should largely be replaced by a regime that would authorize the Indian Arts & Crafts Board to work in consort with Indian tribes to develop appellation-of-origin-like certification marks for handicrafts. This solution would both (1) distinguish "genuine" goods in the marketplace and (2) enable tribes to preserve the cultural heritage they bring to arts and crafts. Importantly, this solution would remove the IACA's stranglehold on the word "Indian," so that autonomous individuals would be free to use the term in the construction of their identities.(23)
Part I lays out the problems that the Native American arts and crafts industry faced in 1990 and summarizes the provisions of the Indian Arts & Crafts Act. Part II presents a sketch of the reactions to the IACA and summarizes the legal actions taken under the Act. Part II also considers the legal vulnerabilities of the Act. Part III employs the analytic tools of critical theory to reveal the IACA's flaws and to suggest reasons why the Act has created so much uproar. Part IV proposes an alternate approach to solving the problems in the market for Native American arts and crafts. Part V surveys recent developments in the industry to demonstrate the inadequacies of the IACA in combating emerging issues.
I. THE POLITICAL A ND CULTURAL ECONOMY OF NATIVE AMERICAN ARTS AND CRAFTS
The law may indeed help keep ancestral styles alive--a worthy aesthetic aim--but much of the stuff Indians produce now is already giftshop kitsch, indistinguishable from imports or fakes. The real impetus behind this new legislation is a desire to protect jobs on the Indian reservations. Like bingo games (lucrative thanks to Indians' exemption from state anti-gambling laws), Indians can profit from autonomous handicraft businesses on their own lands.(24) --The Economist describing the Indian Arts & Crafts Act of 1990
A. The Market for Native American Arts and Crafts
A glossy color brochure published by the Indian Arts and Crafts Board proclaims that "[t]oday, American Indians and Alaska Natives are producing arts and crafts throughout the United States--from Maine to California and from Alaska to Florida."(25) Just as the brochure conveys a wide geographic scope of production, the catchall phrase "arts and crafts" encompasses a great variety of art-like and craft-like products.(26) It includes items closely associated with a particular tribe, like Navajo rugs, Zuni jewelry, Hopi kachina dolls, Pomo woven baskets, Haida totem poles, Alaska Native masks, and Catawba pottery.(27) It covers skills such as wood carving, ivory carving, quill work, hide painting, metalwork, beadwork, basket weaving, painting, sculpting, and jewelry making. And it extends to categories such as fine art, handicrafts, tourist art, ethnic art, replicas of artifacts, souvenirs, and "ethno-kitsch."(28)
By the late 1980s, the market for these goods had become big business in the United States.(29) Purchases by a wide range of consumers of every ilk--from serious art collectors to New Age-influenced yuppies, from urban Indians (and others) at powwows(30) to souvenir seekers in the Southwest--caused the demand for Native American arts and crafts to swell. A 1985 congressionally mandated study by the U.S. Department of Commerce estimated annual sales of Native American jewelry and handicrafts at $400 to $800 million.(31) Given the dire economic conditions in Indian country,(32) one would think that this data offered cause for celebration, especially for those advocating tribal self-determination and economic self-sufficiency: Arts and crafts provided a source of vital income to many Indians.
But the report had another story--devastating and sobering--to tell: As much as 20% of the market represented sales of "fake" goods passed off as "genuine" Indian products that were sold for drastically lower prices--as much as 50% lower.(33) That is, employing economic and social justice rhetoric, as much as $160,000,000 was income unfairly stolen from the pockets of Indians. Moreover, this kind of passing off was illegal under a 1935 federal Indian arts and crafts law ("1935 Act"). The report told the familiar story of the Indian being ripped off yet again. This time the refrain came with a postmodern wrinkle. According to the report, most of the fakes came from overseas, primarily Mexico, the Philippines, and Taiwan. The report explained that "entrepreneurs send supplies and samples to foreign countries, where an experienced and inexpensive work force duplicates the original sample ... sometimes even [reproducing] the craftsman's signature.(34) The report prompted action by Congress, and in 1988, Congress beefed up customs policies to ensure that the "counterfeit" goods were marked with country-of-origin designations.(35) But, before the customs regulations could even be implemented, let alone given time to work,(36) a growing American Indian lobby in Washington, DC, argued that more should be done to stop the threat from overseas.(37)
In April 1989, then-Representatives Ben Nighthorse Campbell (D-CO) and Jon Kyl (R-AZ) and Senator John McCain (R-AZ) introduced legislation to amend the powers of the fifty-year-old federal Indian Arts and Crafts Board, created by the 1935 Act, by putting real teeth into the 1935 Act's criminal provisions.(38) The 1935 Act made it a crime punishable by a $500 fine or six months imprisonment or both for anyone to "willfully offer[] or display[] for sale any goods ... as Indian products ... when such person knows such goods are not Indian products."(39) However, the requirement of "willful" intent made enforcement difficult and not a single criminal prosecution had ever been brought under the law.
There was also a desire for a uniform national law, especially in the face of what was termed a proliferation of state laws dealing with the fakes problem.(40) As it stands, only a handful of states have similar statutes, most of which are quite similar to each other.(41) (The bill initially included a federal preemption clause,(42) but this clause was later removed.(43))
The initial version of the bill(44) responded to these concerns by proposing two changes to the 1935 Act: (1) double the imprisonment terms from six months to a year(45) and (2) define "Indian" as a member of a federally recognized tribe.(46) Substantial changes were made to the bill by the House Judiciary Committee and as a result of a hearing held in Santa Fe, New Mexico in August 1989 by the House Committee on Insular Affairs(47) for the purpose of taking "the pulse of Indian arts and crafts activities."(48) Although the bill failed to make it to a floor vote in 1989, it was subsequently passed in the closing days of the 1990 session.(49) The specific provisions of the Act are analyzed in Part I.C below.
B. Fakes, Stakes, and Cultural Survival
At this point it is worth pausing to ask, What, exactly, is the problem with imitation Indian arts and crafts? And just what is at stake here?(50) The millions of dollars "lost" to Indian producers has already been noted. Fakes, though, may also threaten the very existence of the market.
One worry is that the surge in imitations will drive legitimate producers out of the market. Because the lower prices that the imitations fetch depress overall market prices, legitimate producers are forced either to reduce their own prices--and profit margins--in order to compete or to exit the market altogether. But if fakes result in lower prices, perhaps consumers benefit more than producers are hurt. After all, because the fake goods themselves are significantly cheaper than--and often are virtually identical to--those made by Native Americans, the counterfeit goods provide a less expensive substitute, giving more choice to consumers.(51)
The immediate response to this type of market-based analysis is that the producers and sellers of the fake goods commit a fraud on unsuspecting consumers.(52) Thus, fakes can be seen to threaten the integrity of the market, leading to an erosion of consumer confidence, a cardinal sin of neoliberalism. And assurances of authenticity appear to be especially important to consumers of Indian arts and crafts.(53) Without confidence in the authenticity of these products, demand will decline as consumers shift their preferences to goods with greater consumer protections. Such a decline will drive even more legitimate Native American producers out of the market. Worse, without profit incentive, young American Indians will be deterred from becoming artisans, so those legitimate producers who lea,ye the market will not be replaced by others. The fear is that native arts and crafts traditions will die out, leading to the disappearance, so the argument taken to its extreme goes, of "an irreplaceable part of American culture and a valuable national resource: native American arts and crafts."(54)
What's clear from this argument is that, contrary to the implications of the quotation from The Economist that heads this part, in the minds of many, more than economics is at stake. The cultural integrity of the market, and indeed Native American culture itself, are also at stake. Not surprisingly, appeals to justice and survival animate much of the rhetoric about the problem of imitation Indian arts and crafts.
In terms of socioeconomic justice, the argument is that it simply "isn't fair" that the unscrupulous are passing off and trading on the good will and the traditions of Native Americans. Given stagnant economies and high unemployment, together with a history of oppression and outright colonization, American Indians ought to profit, or at least control who profits, from sales of Indian arts and crafts. Closely related is the argument that Native Americans should be able to curtail appropriation of their culture and to maintain their own culture's survival.(55) Cultural justice advocates argue that the law should accommodate respect for collective cultural identities, and more, that the law must be available for these purposes.(56) These arguments are interrelated and amount to an appeal for a distributive justice regime that will ensure cultural survival.(57)
These cultural survival arguments rest upon assumptions about the importance of arts and crafts in Native American cultures and a general belief that "[t]he production of art and crafts resonates strongly among native people, in part because it is so connected to cultural identity and, in many cases, religious practice."(58) Indeed, that glossy IACB brochure declares that "art is an integral and enduring part of Indian life."(59) Others, however, caution against such totalizing statements. Historian Richard White warns that "the tendency to put the `sacred,' the `traditional,' the `natural,' and the `artistic' at the heart of all Indian life obscures the commercial, the bureaucratic, the secular, the inventive."(60) While some believe that Indian art "is a universal language,"(61) others counter that "it is the sheerest romanticism to believe that all native groups had well-developed pottery, weaving or pictorial traditions, that all these societies were essentially spiritual and artistic."(62) These differing views reflect a much larger, ongoing cultural debate about "Indianness"(63) and "authenticity"(64) which this note cannot fully engage, let alone resolve. For now, this note can only suggest that the more romantic side of the debate had a strong hold on the collective minds of those involved in the passage of the IACA and that the uncritical embrace of it explains in part the easy urgency with which the 101st Congress acted to "save" Indian arts and crafts.
C. The Indian Arts and Crafts Act of 1990
The IACA builds on the 1935 Act, which established the IACB,(65) by making five major changes.(66) Additionally, in October 2000 Congress passed the Indian Arts and Crafts Enforcement Act of 2000 ("2000 amendments"), which made several minor technical changes; these changes are noted here as well.(67)
First, the IACA makes it a felony to knowingly misrepresent Indian products. The criminal provisions read:
It is unlawful to offer or display for sale or sell any good, with or without a Government trademark, 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.(68)
The language "falsely suggests" parallels the requirement of the Lanham Act for trademark infringement.(69) The Act also significantly increases penalties. First-time violators face fines of up to $250,000 and imprisonment of up to five years; non-individual offenders (e.g., wholesalers, shops, or galleries) face fines of up to $1,000,000. Subsequent violations are punishable by prison terms of up to fifteen years and fines up to $1,000,000; for non-individuals, subsequent offenses raise the maximum fine to $5,000,000.(70) While this provision has real bite, only two criminal indictments have been brought under the law, and there has not yet been a single successful criminal prosecution under it.
Second, the IACA authorizes civil actions
against a person who directly or indirectly offers or displays for sale or sells a good, with or without a Government trademark, in a manner that falsely suggests(71) 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....(72) The Act's original language provided that a civil action may be brought by (A) the Attorney General of the United States upon request of the Secretary of the Interior on behalf of an Indian who is a member of an Indian tribe or on behalf of an Indian tribe or Indian arts and crafts organization; or (B) by an Indian tribe on behalf of itself, an Indian who is a member of the tribe, or on behalf of an Indian arts and crafts organization.(73)
The 2000 amendments clarify that Indian arts and crafts organizations and individual Indians are both authorized to bring suits on their own.(74) The statute allows civil plaintiffs to obtain injunctions and other equitable remedies as well as damages. Plaintiffs may recover the greater of either (1) treble damages(75) or (2) "in the case of each aggrieved individual Indian, Indian tribe, or Indian arts and crafts organization, not less than $1000 for each day on which the offer or display for sale or sale continues."(76) Additionally, a court may award punitive damages and attorney fees.(77)
Third, the Act amends the powers of the IACB to beef up the trademark facilitation provisions. Specifically, the IACB is now authorized to register government-owned trademarks with the United States Patent and Trademark Office and to assign them as well as their associated goodwill to individual Indians or tribes. The registration and assignment are to be completed free of charge.(78)
Fourth, the Act expands the IACB's enforcement powers by authorizing the Board to refer complaints about goods allegedly being falsely sold as "Indian" to the Federal Bureau of Investigation.(79) After reviewing the FBI's investigation report, the Board may recommend to the Attorney General that she institute criminal proceedings.(80) Additionally, the Board may recommend to the Secretary of Interior that the matter be referred to the Attorney General for civil action by the Department of Justice.(81)
Finally, the IACA defines key terms of the provisions, including "Indian." According to the definition section of the statute, "Indian" means (1) a member or (2) a certified artisan of a state- or federally recognized tribe.(82) The definition of "Indian tribe" includes both (1) "any Indian tribe, band, nation, Alaska Native village, or other organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians," and (2) "any Indian group that has been formally recognized as an Indian tribe by a State legislature or by a State commission or similar organization legislatively vested with State tribal recognition authority."(83) The specifics of the certification process are left to the discretion of each individual tribe, who may not impose a fee for certifying an Indian artisan. According to the Final Regulations, however, only individuals "of Indian lineage of one or more members of such Indian tribe" may be certified by the tribe for purposes of the Act.(84)
On its face, then, the IACA appears an innocuous law.(85) The Act quite narrowly defines both the criminal and civil offense as "falsely suggest[ing that a good] is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization...."(86) Although "Indian product" is broadly defined in the Final Regulations as "any art or craft product made by an Indian,"(87) the IACA merely forbids the labeling of these products as Indian made(88) unless the items were in fact made by an Indian (as the Act defines the term). Thus, the IACB has described the Act as "truth-in-advertising" consumer protection legislation.(89)
If, however, the Act was meant simply to protect consumers, one wonders why the law was needed at all. As mentioned above, states with active Indian arts and crafts markets had existing legislation regulating the trade.(90) State unfair competition laws would also protect Indian arts and crafts. At the federal level, the Lanham Act prohibits false advertising(91) and deceptive trade practices concerning trademarks,(92) and the Federal Trade Commission Act prohibits "unfair or deceptive acts or practices in or affecting commerce."(93)
Moreover, an analysis of the legislative intent of the bill reveals that such a description is disingenuous. The IACA does more than simply forbid deceptive trade practices (and mandate an ill-reasoned definition of "Indian"). It was passed as an effort to save Indian culture itself.
According to the legislative history, the IACA was passed to accomplish the twin goals of preserving both (1) the market for American Indian arts and crafts and (2) Native American culture itself; a careful reading of the legislative history reveals the close connection between these twin goals.(94) While consumer protection is indeed a component of market preservation, the IACA's primary concern in this regard is shoring up consumer confidence in the market by stemming the flow of imported fakes and ensuring that only genuine and authentic goods are sold as Indian. While the IACA is not completely devoid of consumers' interests, the concern is that consumers believe that they are getting the "real goods."(95) Thus, the legislated path to consumer protection is directly linked to the cultural survival of Indians: to insure that only authentic goods reach consumers, a pure source must be maintained. In this sense, the cultural survival of Indians is in the best interest of the American consumer.
This interpretation of the law is borne out by the language of the Act. Enforcement of the IACA was intended to be accomplished primarily through the civil provisions,(96) which can be invoked only by the Attorney General and tribally affiliated Indian plaintiffs--not by aggrieved consumers or by shopkeepers whose sales might be injured by fakes. The reasoning, apparently, goes something like this: American consumers want genuine Indian arts and crafts; a product is genuinely Indian if it is made by an Indian; and an Indian is an Indian if a tribe says he or she is an Indian; therefore, the law should give to tribes the right and the responsibility to keep the supply of genuine Indian crafts pure and free of fakes.
Seen against the backdrop of other trade practices laws, the IACA assigns the "goodwill" in Indian styles and Indian craft products solely to Indians affiliated with an Indian tribe. A similar observation has led Gail Sheffield to hint that the IACA creates a property right in "Indian identity." Stating that the statutory damages that the Act allows ("not less than $1000 for each day on which the offer or display for sale or sale [of fake products] continues"(97)) are "neither compensatory nor punitive," Sheffield suggests that these damages "relate[] to the unauthorized appropriation of these parties' `property,' their Indian identity."(98) But then she seems to dismiss the notion as "farfetched,"(99) concluding that "[t]here is no evidence that Congress intended" to "recogniz[e] Indian identity as a property right."(100) That may be so, but the record clearly indicates that the IACA was intended as a tool for Indians to preserve an important part of their culture.(101) For instance, at the Santa Fe Heating, Campbell acknowledged that the hearing would arouse "very passionate emotions" since Indian arts and crafts are "not just ... about paint, silver and beads but people's livelihoods, and more importantly, the very identity of individuals, not to mention the age-old traditions and customs of the American Indian.(102) The IACA may not confer a property right in identity per se, but it does attempt to legislate cultural survival. The effect of the law, through its definition of Indian, though, has been to complicate the existing debates about what it means to claim Indian identity.
Thus, the IACA attempts to preserve Native American culture in two ways: (1) by letting Native American producers reap the economic benefits of the lucrative multi-million-dollar trade in these goods; and (2) by allowing Indian tribes to regulate the industry through (a) the requirement of tribal membership, (b) the control of the artisan certification process, and (c) the civil cause of action to go after counterfeiters and impostors.
D. The "Genuineness" Issue
Consider the statement of the Indian Arts and Crafts Board representative at the Santa Fe hearing: "We believe that genuineness will be an increasingly important issue, especially as we all, increase our efforts to promote exports of Indian arts and crafts."(103) The statement raises the question, What, exactly, does "genuine" mean?(104) The IACB representative seemed to recognize the range of possibilities and expressed his desire for a clear and national definition of "genuine" and "Indian" but also stated, "we believe very strongly that the definition proposed is too narrow."(105)
This section does not attempt to suggest the proper definition of "genuine" nor does it offer an exhaustive list of possible meanings of "genuine." Rather, this section serves to point out the range of the possibilities and the very limited view of the IACA.(106) While the list is presented in checklist format, what is more likely is that some combination of the enumerated criteria actually determines what is "genuine" in the minds of both producers and consumers of Indian arts and crafts.(107) There are at least six distinct yet interrelated ways of modeling an answer to this question of "genuineness," and as the questions posed after each criterion suggest, none of the six ways is without problems.(108)
The object was made by an Indian. Who "counts" as an Indian? One possible answer, adopted by the IACA, is a political-legal one: An Indian is a member of an Indian tribe. Other ethnological possibilities include: (a) informal acceptance by a tribe as such, (b) lineal descent (as is the case for most state-law equivalents of the IACA),(109) or (c) certain lifestyle practices. The object was made by following a certain method or practice. How is "method" or "practice" defined? Possibilities include: (a) completely handmade, (b) merely non-machine made, or (c) non-mass produced. The object was made of certain materials. What materials are "legitimate"? The object employs certain tropes, symbols, language, or imagery. As determined by whom or what? The object has use value in another setting, or the object is an artifact. Does the object have to be currently in use? Do replicas of the object count? The object meets certain aesthetic or quality standards. Whose standards? How are the standards to be measured?
Clearly, the IACA rather bluntly decides which notion of authenticity counts. The IACA does not attempt, for example, to regulate craft practices, methods, or styles or to mandate specific aesthetic standards. In fact, the Final Regulations indicate that the Act is forward-looking in this regard, defining "Indian product" as "any art or craft product made by an Indian."(110) The Act simply equates the "genuineness" of a product with that of its producer. No matter what other qualities the product may (or may not) possess, if an authentic "Indian" made it, the product is authentically "Indian." Thus, the IACA grossly oversimplifies the "genuineness" issue.(111) Moreover, in its definition of Indian, the IACA eschews a reality-based definition of Indian identity in favor of a simplistic, reductionist (although judicially workable) determination of what it means to be "Indian."
The note reconsiders these issues in Part III, but turns in Part II to look at the ramifications of choosing this particular notion of "genuine" and of following this particular course of action to deal with the imported "fakes" problem.
II. GOOD INTENTIONS AND UNINTENDED CONSEQUENCES: "LAW" ON THE GROUND
What's next? Will marchers have to prove Irish ancestry to participate in the ... St. Patrick's Day parade ...?(112)
--Editorial, 7he Daily Oklahoman, decrying the Indian Arts & Crafts Act of 1990
The passage of the IACA provoked immediate, vocal, and, at times, visceral responses locally in Indian country.(113) The Act exacerbated longstanding tensions over who can claim Indian identity, and this debate took on a new vehemence under the shadow of the Act.(114) As word of the IACA spread, international news organizations such as The Economist and the Wall Street Journal railed against the Act. Before the regulations were finally promulgated in late 1996, the IACA had a "chilling effect" on the Indian art world even though the IACA was not enforceable. In the four years since, the criminal and civil provisions of the Act have produced a mere handful of cases.
This Part provides a survey of the reactions to and the actions under the IACA since its passage ten years ago.(115) The roughly chronological account begins with the earliest reactions to the Act among American Indians...
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