Saturday, August 27, 2005
Several respondents suggested that the definition of Indian artisan should be clarified to read ``an individual who is certified by an Indian tribe as its non-member artisan.'' This clarification has been adopted with a minor modification.
Definition of Indian Arts and Crafts Organization, Section 309.2(c)
Two respondents asked whether section 309.2(c) operates to exclude marketing entities, other than Indian arts and crafts organizations, from the law and regulations. Several others asserted that the definition of Indian arts and crafts organization should include any organization set up under tribal law, custom or authority, as well as under any other legal authority.
The Act broadly applies to the marketing of arts and crafts by any person in the United States. The reference to Indian arts and crafts organization as a protected group is not intended to suggest that the Act's regulation does not apply to all marketing activities. In addition, the Act's requirement that an Indian arts and crafts organization be legally established in order to meet the definition includes tribal law.
Definition of Indian, Section 309.2(a)
One respondent asked that the regulations specifically name Native Hawaiians to protect them under the Act. Another wanted individuals who have Certificates of Indian Blood, yet are neither on tribal rolls nor certified as Indian artisans, to be included under the definition of Indian.
The final regulations do not adopt these suggestions. The Act specifically defines who is an Indian protected by the Act. The regulations can interpret and clarify the Act but cannot change the statutory terms of the Act.
One respondent expressed concern about state incorporated non-profit ``Indian'' organizations and their members who are not enrolled with state or Federally-recognized tribes, yet present themselves as Indian at crafts shows.
In addition, adoption was an issue for two respondents. One expressed concern that non-Indians, ``adopted by Indian spiritual leaders,'' may be permitted to sell their work as Indian. Another stated that ``not until the seventh generation'' should an adopted tribal member or family have the right to offer their handcrafts for sale as Indian.
The definition of Indian already satisfies these concerns. State incorporated non-profit ``Indian'' organizations do not meet the definition of Indian tribe under the Act and in section 309.2(e)(1) and (2) of the regulations. Membership in a non-profit ``Indian'' organization does not meet the definition of Indian under the Act and in section 309.2 of the regulations.
Furthermore, if an ``Indian spiritual leader'' or tribal member adopts an individual, this action does not mean that the adopted individual is a member of a state or Federally-recognized tribe or is certified as an Indian artisan by a state or Federally-recognized tribe.
One response asked how the legislation affects arts and crafts sold in business establishments. Another stated that the ``middle man'' should be held accountable for how the product is marketed.
Section 309.1 of the regulations covers these concerns. It states that the Act regulates products offered or displayed for sale, or sold as Indian produced, an Indian product, or the product of a particular Indian, or Indian tribe, or Indian arts and crafts organization within the United States. This section does not limit the marketing vehicles covered by the regulations.
The Act applies to any offer for sale or display for sale, or actual sale by any person in the United States. In light of this broad application, section 309.1 is appropriately drafted.
Monday, August 15, 2005
Examples include but are not limited to: double woven river cane baskets, yucca winnowing trays, willow burden baskets, honeysuckle sewing baskets, black ash picnic baskets, cedar capes and dresses, pine needle/raffia effigy baskets, oak splint and braided sweet grass fancy baskets, birchbark containers, baleen baskets, rye grass dance fans, brown ash strawberry baskets, sumac wedding baskets, cedar hats, fiber basket hats, yucca wicker basketry plaques, and spruce root tobacco pouches.
This is a very small sampling of Indian made products - traditional to the Cherokees and other Southeastern Tribes are the double woven river cane baskets, but they can also be single walled and either diagonal or twill weaves. Traditional to the Oklahoma Cherokees are the double walled wicker baskets, made of a variety of materials including honeysuckle, willow and buck brush, because river cane was not as readily available in Oklahoma as in the Southeastern part of the United States.
The uniqueness of the Indian basket is also the gathering and processing of the material from which the basket is made. For this reason when a native material was not available an Indian weaver would adapt an available native material in their area. The Cherokee double woven basket today is also made from commercial chair cane or commercial reed. The traditional baskets also contained native or natural dyes usually made from the roots of plants such as the blood root for the Cherokee orange/red color or walnut bark or hull for the dark brown color. Today there are many commercial dyes that can be used to obtain the effect of these colors.
Contemporary basket weavers will also use a variety of non-traditional material and colors for their baskets, in some cases creating their own personal style of weaving.
If the individual is a certified non-member Indian artisan, rather than an enrolled Tribal member, the product identification should include the name of the Tribe providing official written certification that the individual is a non-member Indian artisan and the date upon which such certification was issued by the Tribe.
To be certified by an Indian Tribe as a non-member Indian artisan, the individual must be of Indian lineage of one or more members of such Indian Tribe and the certification must be issued in writing by the governing body of the Indian Tribe or the certifying body delegated this function by the governing body of the Indian Tribe
Example: Labels on Indian products should include:
- Name of the artist or artisan
- Name of the Tribe in which the artist is enrolled
- The individual's Tribal enrollment number or a statement that the artist is a certified non-member Indian Artisan of *Z* Tribe providing the certification and the date the certification was issued by the Tribe
For a first time violation of the Act, an individual can face civil or criminal penalties up to a $250,000 fine or a 5-year prison term, or both.
If a business violates the Act, it can face civil penalties or can be prosecuted and fined up to $1,000,000.
The IACB warns that consumer fraud not only harms the buyers, it also erodes the overall Indian arts and crafts market and the economic and cultural livelihood of Indian artists, craftspeople, and Tribes.
Indian Arts and Crafts Board
U.S. Department of the Interior
1849 C Street, NW, MS-2058-MIB
Washington, D.C. 20240
Telephone: (202) 208-3773
Toll Free: (888) ART-FAKE
Fax: (202) 208-5196
1. A non-artistic Indian labor made product made from assembled or *fit together parts*.
- a necklace strong with overseas manufactured fetishes or heshi. If an Indian assembled the necklace, in keeping with the truth-in-marketing focus of the Act, it can be marketed as *Indian assembled*. It does not meet the definition of *Indian product* under the Act. Similarly, if a product, such as a dream catcher is assembled by an Indian from a kit, it can be marketed as *Indian assembled*. It does not meet the definition of *Indian product* under the Act.
2. An Indian and a non-Indian jointly produce a product.
- In order to be an *Indian product*, the labor component of the product must be entirely Indian. In keeping with this truth-in-marketing law, a collaborative work should be marketed as such. Therefore, it should be marketed as produced by *X* (name of artist or artisan), *Y* (Tribe of Individual's enrollment) or (name of Tribe providing official written certification the individual is a non-member Indian artisan and date upon which such certification was issued by the Tribe), and *Z* (name of artist or artisan with no Tribe listed) to avoid providing false suggestions to consumers. Jointly produced products do not meet the definition of *Indian product* under the Act.
- An Indian conceives, designs, and makes the art or craft...Then, it is an *Indian Product*;
- An Indian produces a product that is *handcrafted*, as explained in 309.3(d)(iii)...Then, it can be marketed as such and it meets the definition of *Indian product*.;
- An Indian makes an art or craft work using some machine made parts....Then, it is *Indian made* and meets the definition of *Indian product."
- An Indian designs a product, such as a bracelet, which is then produced by non-Indians...Then, it is not an *Indian product* under the Act;
- A product, such as jewelry, is made with non-artistic Indian labor, from assembled or *fit together parts*...Then, it is not an *Indian product* under the Act;
- A product in the style of an Indian product is assembled by non-Indian labor from a kit...Then, it is not an *Indian product* under the Act;
- A product is in the style of an Indian art or craft product, but not made by an Indian...Then, it is not an *Indian product* under the Act;
- An Indian and a non-Indian jointly undertake the art or craft work to produce an art or craft product, for example a concho belt...Then, less than all the labor is Indian and hence it does not meet the definition of *Indian product* under the Act.
Requests were made to expand the definition of Indian to permit people of Indian descent, yet who are not enrolled in State or federally recognized Tribes, to sell their work as Indian Art. The final rule has not adopted this request.
The term *Indian* does include members of state recognized Tribes.
Those artisans of Indian descent, may market their goods as an Indian only if they are certified as an *Indian artisan* by an Indian Tribe. Such certification is at the option of the tribe.
The Act does not prohibit statements as to ones Indian heritage, so long as the statements are truthful and do not falsely suggest the individual is a member of an Indian Tribe. (The product made is not Indian unless the maker is a member of an Indian Tribe or has a letter of certification from the Tribe of descent)
Products that are not Indian made, in the style of Indian products and offered for sale, can only be sold as *non-Indian made*.
Examples of non-qualifying products, (not Indian Products):
- products *in the style of an Indian art or craft* made by non-Indian labor;
- products *in the style of an Indian art or craft* designed by an Indian but produced by non-Indian labor;
- products *in the style of an Indian art or craft* assembled from a kit;
- products *in the style of an Indian art or craft* without substantial transformation provided by Indian artistic or craft work labor;
- An industrial product may not become an Indian product;
- products *in the style of an Indian art or craft* that is produced in an assembly line or related production line process using multiple workers not all whom are Indians. (example: if twenty people make up the labor to create the product, and one person is not Indian, the product is not an *Indian product*.
Tuesday, August 09, 2005
FROM TITLE 25, SECTION 308 OF THE FEDERAL REGULATIONS - CERTIFICATES OF INDIAN ARTS AND CRAFTS TO CERTIFY GENUINENESS OF INDIAN ARTS AND CRAFTS
This federal code section establishes a procedure for authenticating Indian products and procedures for filing a complaint against those who sell products which are not authentic Indian products.
What are the key definitions for purposes of the Act?
Indian as applied to an individual means a person who is a member of an Indian tribe or for purposes of this part is certified by an Indian tribe as a non-member Indian artisan.
Indian artisan means an individual who is certified by an Indian tribe as a non-member Indian artisan.
Indian arts and crafts organization means any legally established arts and crafts marketing organization composed of members of Indian tribes.
Indian product-- In general. Indian product means any art or craft product made by an Indian. Exclusion for products made before 1935.
Indian tribe means--
Any Indian tribe, band, nation, Alaska Native village, or any 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; or
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.
Product of a particular Indian tribe or Indian arts and crafts organization means that the origin of a product is identified as a named Indian tribe or named Indian arts and crafts organization.
CERTIFICATES FOR INDIAN ARTS AND CRAFTS
The Indian Arts and Crafts Board offers each Indian enterprise the privilege of attaching to its trademark a certificate declaring that it is recognized by the Indian Arts and Crafts Board as an Indian enterprise dealing in genuine Indian-made handicraft products, and that its trade-mark has the approval of the Board. The certificate shall consist of a border around the trade-mark bearing the words ``Certified Indian Enterprise Genuine Handicrafts, U.S. Indian Arts and Crafts Board, Department of the Interior,'' and these words may be used wherever the trade-mark appears. Application for the certificates are made to the Indian Arts and Crafts Board, Department of the Interior.
Conditions of eligibility to attach certificates.
It must offer for sale only Indian-made genuine handicraft products, i.e., objects produced by Indian craftsmen with the help of only such devices as allow the manual skill of the maker to condition the shape and design of each individual product.
It must be entirely Indian owned and organized either by individual Indians or by groups of Indians.
It must agree to apply certificates of genuineness only to such products as meet the standards of quality prescribed by the Indian Arts and Crafts Board at the time of the application of the enterprise for the privilege of attaching the certificate.
It must agree to obtain the approval of the Indian Arts and Crafts Board as to the manner of production of the certificates.
Penalties for misuse of trade-marks
The use of Government trade-marks in an unauthorized manner, or the colorable imitation of such marks, is subject to the criminal penalties.
Any person who shall counterfeit or colorably imitate any Government trade-mark used or devised by the Board shall, or any person who shall knowingly make any false statement for the purpose of obtaining the use of any such Government trade-mark, shall be guilty of a misdemeanor, and upon conviction thereof shall be enjoined from further carrying on the act or acts complained of and shall be subject to a fine not exceeding $2,000, or imprisonment not exceeding six months, or both such fine and imprisonment.
Revocation of privilege of attaching certificates
If an enterprise, after securing the privilege of attaching the certificates, should fail to meet the above-named conditions, the Board reserves the right to revoke the privilege.
How can an individual be certified as an Indian artisan?
The individual must be of Indian lineage of one or more members of such Indian tribe;
The certification must be documented in writing by the governing body of an Indian tribe or by a certifying body delegated this function by the governing body of the Indian tribe; and
A tribe may not impose a fee for certifying an Indian artisan.
How will statements about Indian origin of art or craft products be interpreted?
In general. The unqualified use of the term ``Indian'' or of the term ``Native American'' or the unqualified use of the name of an Indian tribe, in connection with an art or craft product, is interpreted to mean:
The maker is a member of an Indian tribe, is certified by an Indian tribe as a non-member Indian artisan, or is a member of the particular Indian tribe named; and
The art or craft product is an Indian product.
Products of Indians of foreign tribes:
In general. The unqualified use of the term ``Indian'' or of the term ``Native American'' or the unqualified use of the name of a foreign tribe, in connection with an art or craft product, regardless of where it is produced and regardless of any country-of-origin marking on the product, is interpreted to mean for purposes of this part that:
The maker is a member of an Indian tribe, is certified by an Indian tribe as a non-member Indian artisan, or is a member of the particular Indian tribe named;
The tribe is resident in the United States; and
The art or craft product is an Indian product.
Exception where country of origin is disclosed. This section does not apply to any art or craft for which the name of the foreign country of tribal ancestry is clearly disclosed in conjunction with marketing of the product.
Example. X is a lineal descendant of a member of Indian Tribe A. However, X is not a member of Indian Tribe A, nor is X certified by Indian Tribe A as a non-member Indian artisan. X may not be described in connection with the marketing of an art or craft product made by X as an Indian, a Native American, a member of an Indian tribe, a member of Tribe A, or as a non-member Indian artisan of an Indian tribe. However, the true statement may be used that X is of Indian descent, Native American descent, or Tribe A descent.
How are complaints filed?
Complaints about protected products alleged to be offered or displayed for sale or sold in a manner that falsely suggests they are Indian products should be made in writing and addressed to the Director, Indian Arts and Crafts Board, Room 4004-MIB, U.S. Department of the Interior, 1849 C Street, NW, Washington, DC 20240. They now have a web site where complaints may also be submitted via the web: http://www.iacb.doi.gov/act.html
What penalties apply?
A person who offers or displays for sale or sells a 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:
Is subject to the criminal penalties specified in section 1159, title 18, United States Code; and
Is subject to the civil penalties specified in section 305e, title 25, United States Code.
The Code of Federal Regulations is unclear as to whether or not the trade-mark they refer to is a trade-mark applied for through the Federal Trade Mark office in addition to the certificate or if the certificate is akin to a Federal Trade Mark for Indian Arts and Crafts purposes.