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Of kitsch and kachinas: a critical analysis of the Indian Arts and Crafts Act of 1990.

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 in Oklahoma(116) and ends with the May 2000 Senate Committee on Indian Affairs oversight hearing about the Act(117) and the subsequent minor technical amendments Congress made to the Act in October 2000.

A. Reactions

As the anecdote in the Introduction about the closure of the Muskogee, Oklahoma, museum indicates, the immediate reaction to the Act came from Indians outside the Santa Fe arts and crafts industry.(118) The anecdote also points to the unintended effect that the law had on producers and displayers of "fine art," as opposed to handcrafted, artisanal products. These two themes are explored here by looking first at the effect of the IACA on the Cherokee and then to reactions in the Indian art world nationwide.

Many Indians in Oklahoma viewed the Act with open hostility, as yet another instance of paternalistic, federal government encroachment on Indian sovereignty. For example, in a letter to the editor of the Tulsa Tribune, one Indian wrote, "While we use our famous tunnel vision, and argue among ourselves about who is Indian and who is not, Big Brother is quietly burying another piece of our sovereignty as he pats us on the head, and himself on the back."(119) Others saw in the Act a sinister twist on the age-old story of government intrusion. Because fellow Native American Ben Nighthorse Campbell had sponsored the Act, some critics expressed incredulity that the IACA limited the definition of Indian to those enrolled in a tribe. They viewed the IACA as a wedge driven between Indians--quite insidiously--by other Indians. In a letter to the editor, two writers summarized this outlook:
   This time it's the Indians doing a number on the Indians.... Those who
   proposed the law knew the history of corruption that occurred during the
   signing of the Dawes Commission roll. Some signatures were marked with an
   "X," some with incorrect spelling of the name and some [eligible potential
   signatories were] rejected because a "witness" with a vendetta disavowed an
   Indian's claim [that he was actually of Indian descent].(120)


Some doubted whether the IACA was the best way to combat the problem of fakes and called for an end to the internecine battling by appealing to the common bond of United States citizenship rather than tribal affiliation. The words of a Cherokee artist:
   If there really is a sincere desire to rid the nation of counterfeit Indian
   goods, let us boycott the sale of all rubber tomahawks, bows, arrows and
   the cute little "chief" headdresses, all from Taiwan. Refrain from
   purchasing look-alike Navajo rugs, made in Mexico, junk "Indian" jewelry
   from Taiwan. In other words, buy American and let's end this feud between
   Americans.(121)


At the same time, the IACA began to affect individual Indian artists. Among the first affected by the IACA was Jimmie Durham, a highly regarded artist of Cherokee descent but not an enrolled member of the tribe.(122) He chose not to seek either membership or certification, and as a result saw gallery shows canceled.(123) Another non-enrolled artist of Cherokee descent, Bert Seabourn, whose work hangs in the permanent collection of the Vatican, decided to seek out certification by the tribe, but the Cherokee declined to certify him.(124) Seabourn's treatment at the hands of the tribe and federal law prompted the Wall Street Journal to opine about the inadequacies of the Act. The Journal expressed libertarian outrage that such a well-respected artist could be denied the ability to assert his heritage under the IACA.(125)

Other artists found even the thought of certification ideologically repugnant. In this regard, the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia and syndicated newspaper columnist James Kilpatrick, one of the Thomas Jefferson Center's trustees, publicized the case of Jeanne Walker Rorex.(126) Rorex, the niece of famed Cherokee sculptor Willard Stone,(127) an artist whose work appears prominently at the Muskogee museum, refused to be enrolled or certified by the Cherokee. Although likely eligible for certification by the tribe, for Rorex, the issue was one of individual autonomy.(128) The Thomas Jefferson Center's involvement led to a conference about the IACA at the United States Capitol in June 1993.(129)

As the anecdotes of these three artists suggest, the IACA produced a "chilling effect"(130) that overcame the Indian arts and crafts world nationwide, as all awaited the promulgation of regulations.(131) As one observer noted, the Act "begs for clear rules and regulations."(132) Although the Act could not be enforced until the regulations were written, observers commented that "ad hoc enforcement has been accomplished through innuendo and fear."(133) Some galleries refused to show work by certain artists who could not produce documentation.(134) In practice, uncertainty and anxiety led to galleries forcing artists to show "identity cards," although the IACA itself required no such thing.(135) Nevertheless, the Indian Arts and Crafts Board recommended that gallery owners request to see the CDIB (Certificate of Degree of Indian Blood) cards of Indians.(136)

Many recoiled at the recommendation. Jan Esty, a gallery owner, director of the Colorado Indian Market, and vocal critic of the Act, called the Act "un-American."(137) "Leave pedigrees to the stock show. [The Act] requires an artist who calls himself Indian to show you a card proving it, and that makes my skin crawl.... [N]o one has to show me papers."(138) Artist Jaune Quick-to-See Smith, curator of Eiteljorg Museum in Indianapolis, Indiana, compared the Act to the "blacklisting of the McCarthy era, with its implied threat that you (as an unenrolled Indian artist) may not be able to continue your work."(139) Others compared the Act to practices under the Nazi regime. One artist, Dennis Jennings, wryly commented, "Just like a Jewish person under the Hitler era, I have my tattoo. I'm number 807 Foquee Choquino Cominaque, Sac and Fox of Oklahoma."(140) Echoing this sentiment, artist Eugene Pine stated, "[The Act] smacks of Nazism. No one else has to prove anything. Black artists don't have to prove they're black; white artists don't have to prove they're white. I think the government still feels we're possessions, that we're part of the National Park System, standing at the cabin door."(141)

In 1993, hoping to alleviate some of the anxiety in the fine-art world, Senator Jeff Bingaman (D-NM) introduced legislation to amend the IACA to restrict its application only to tribe-specific traditional arts and crafts, and not Indian arts generally.(142) Bingaman had been aware since at least 1991 of the uproar and turmoil that the IACA was creating.(143) In the Senate, he addressed the legal and constitutional vulnerabilities of the IACA in the areas of free expression, equal protection, and tribal sovereignty.(144) No legislative action, however, came from his interventions.

B. Regulations

In November 1996, the Indian Arts and Crafts Board promulgated the Final Regulations interpreting the Act.(145) While the Final Regulations solved some problems,(146) many went unresolved, and, moreover, the regulations created anew other concerns. For example, the Final Regulations forbid the unqualified use of the designation "Native American," in addition to the unqualified use of "Indian" that the statute itself forbids, but allow the use of "Indian-style" or "Native American-style."(147) The definition of "Indian product" is broadly defined to allow for non-traditional styles or mediums, but the Final Regulations do not address the extent to which the product must be of Indian labor.(148) The Final Regulations read: "Indian product means any art or craft product made by an Indian." This simple statement begs the question, what does "made" mean? What if the product is a collaborative effort between Indian and non-Indian? Does this definition include the products of an Indian who owns a factory that manufactures crafts? What if this factory owner employs non-Indian employees? Or uses materials that have been imported from overseas7 What if an Indian designs a craft, but non-Indians construct the craft? What if the non-Indians are located overseas? The Final Regulations fall short of providing final answers.(149)

C. Prosecutions

Enforcement of the criminal provisions of the Act has yet to lead to any reported convictions. Investigations by federal prosecutors have led to the filing of indictments in two separate cases.

In 1998, a federal grand jury indicted a South Dakota man on two felony counts under the IACA, for selling Indian art to two museums in violation of the Act. According to news stories, Wayne Eagleboy, nee Doisy, changed his name to the more lyrical "Eagleboy" in 1969. Prosecutors alleged that Eagleboy was not Indian and that he violated the IACA when he sold art work he had created, which was intended for resale by the museums, and falsely suggested that it was "Indian-made." Eagleboy pleaded not guilty to the charges, and in a plea agreement in which Eagleboy pled guilty to a misdemeanor charge the IACA charges were eventually dropped.(150)

In the second criminal case brought under the IACA, a federal grand jury in Utah indicted a manufacturer/wholesaler on two counts of misrepresenting goods as being Indian-made, for allegedly selling "dream catchers" made entirely by workers of Vietnamese descent in a factory setting. The manufacturer/wholesaler allegedly represented the goods as "genuine articles" when he sold them to two retail stores.(151) There are no reports of the resolution of this case.

D. Lawsuits

Despite the broadness and vagueness of the law, the first lawsuits under the IACA have been filed. Those suits, however, did not target the makers of the cheap, imported fakes whom the IACA was ostensibly written to combat. Instead, the first volleys lobbed under the Act have been aimed at big-name, national retailers J.C. Penney(152) and Wal-Mart.(153) In the first cases litigated under the law, the Ho-Chunk Nation,(154) now resident in Wisconsin, filed twelve separate suits against a mix of retail stores(155) and arts and crafts organizations, alleging that each defendant had represented items for sale as Indian-made when in fact the items were not.(156) As; of May 2000, nine of the cases had reached settlement,(157) and the litigation had produced several judicial opinions.

Initially, in late December 1997, Native American Arts, Inc. (NAA), an Indian arts and crafts organization comprised of Indians from the Ho-Chunk Nation, filed a series of cases in the United States District Court for the Northern District of Illinois under the IACA and various state fraud and deceptive business practices laws. The district court in each case ruled that NAA did not have standing under the Act, interpreting ambiguous language(158) to hold that only the Attorney General or an Indian tribe (on behalf of itself, an individual member, or an arts and crafts organization) may bring the cause of action.(159) The cases were refiled, with the Ho-Chunk Nation as an eligible Indian tribe bringing the cases on behalf of NAA.(160) In the fall of 1998, the case against J.C. Penney survived a summary judgment challenge.(161)

While the judicial opinions thus; far have dealt primarily with standing issues and routine motions to dismiss, the denial of a motion to dismiss in the case brought against national retailer Village Originals, which operates stores displaying and selling arts, crafts, and jewelry produced a constitutional analysis of the Act.(162) According to the complaint, some of the items appeared in the stores with tags "which induced consumers to believe that the products were authentic in the sense that they were manufactured by Native Americans."(163) In its motion to dismiss, Village Originals challenged the constitutionality of the IACA, arguing that the Act violated the First Amendment because the Act's language is overly broad and vague.(164) The district court rejected Village Originals' argument under the two-part Hoffman Estates(165) test for determining whether a statute is void for overbreadth or vagueness, stating:
   Village Originals erroneously contends that the IACA regulates the content
   of its crafts to prohibit it from utilizing "Southwest" designs which
   resemble, in part, Native American design. To the contrary, IACA does not
   restrict the artistic quality of Village Originals' merchandise. Rather, it
   merely regulates the means through which such merchandise is marketed.
   Simply put, Village Originals cannot represent to the public that its
   merchandise was made by Native Americans when, in fact, it was not.(166)


The district court concluded that "the IACA does not interfere with the artistic content ... and only regulates the purely commercial aspect stemming from potential false advertising that is unprotected conduct."(167)

E. Vulnerabilities

In many ways, Village Originals is an easy case, at least on the facts alleged in the complaint, because the items were not produced by an Indian, no matter how defined. Imagine the more difficult case: An individual of Indian descent, who, for whatever reason, does not meet the IACA's requirement of being enrolled in, or certified as an artisan by, a tribe, displays and sells crafts that she has made as "Indian" crafts. She does so because that is what she believes she is and what the crafts are. Haled into court to defend against a civil action, this unenrolled, uncertified Indian will likely challenge the Act as a regulation of non-commercial, protected, core speech--that is, this defendant would attack directly the district court's ruling that the IACA does not infringe on the "artistic content" of the product. This litigant is most likely to succeed on such a challenge by connecting this free expression argument to an equal protection claim through demonstrating that the IACA creates a suspect classification. The IACA, she would argue, designates her as one of a class of people on the basis of Indian race.(168) She might also argue that the IACA infringes on her associational rights, since she should not be compelled to enroll in (or be certified by) a tribe. The IACA of 1990 might also be vulnerable on several other legal grounds; others(169) have analyzed the constitutional issues involving free expression, equal protection, and tribal sovereignty.

The Ho-Chunk litigation also raises the issue of the nature of the harm or injury. The district court in Village Originals seemed to interpret the Act as the IACB does, as "truth-in-advertising" consumer protection legislation. This characterization begs the question, however, of why a consumer has not brought the case. The answer, of course, is that the Act does not allow it. The IACA authorizes tribally affiliated Indians to act as "private attorneys general" to bring offenders to justice. Nevertheless, it is unclear whether the IACA allows each of the 556 federally recognized tribes, as well as state-recognized tribes, to sue the same defendant. For example, might J.C, Penney or Wal-Mart face additional litigation brought by tribes other than the Ho-Chunk, or if found liable in the Ho-Chunk cases, are these retailers immunized from further civil action?

Moreover, the IACA does not require that the tribe bringing the civil action actually participate in the production or sale of arts and crafts, although a trial court conceivably might require such a showing.(170) Nothing in the IACA indicates that the tribe would have to show that it suffered actual harm (for instance, through lost sales of the particular kinds of crafts that the defendant offered for sale). In this regard, it will be interesting to see how damages are awarded in a successful suit. Given the inclusion in the Act of the provision for "statutory damages," however, a readily ascertainable amount is available to the court.(171) Thus, to reiterate the claim made at the end of Part I.C, the IACA appears to view the "injury" to be remedied as an injury to Indian heritage or culture as a whole. And as to the plaintiff, any Indian tribe will do, even if the tribe is not a producer of crafts and cannot point to a history of craft making.

F. Realities

Despite the ten-year existence of the IACA, the problem of imported fakes passed off as "authentic" Indian arts and crafts persists.(172) Enforcement of the IACA (and the similar state laws) continues to be difficult.(173) In May 2000, the Senate Committee on Indian Affairs convened an oversight hearing on the Act, at which the chair of the Indian Arts and Crafts Board testified about the implementation of the Act.(174) In the four years since the issuance of the Final Regulations, the Board's activities have focused primarily on outreach and public education.(175) Despite the Act's grant of authority to the IACB to receive and refer alleged violations of the Act, the Board has received few viable, actionable complaints.(176) Indeed, at the oversight hearing, the IACB's emblematic enforcement success story consisted of the Board having brokered the replacement of fifty inauthentic "Kachina Dolls" offered by Time-Life Books in a promotional giveaway with "authentic Hopi Kachinas that were in fact `handmade by Hopi Indian artisans.'"(177)

To enhance enforcement, the Board is working to create a formal referral process both within the Department of Interior and between Interior and the Justice Department. With its limited annual budget of just over $1 million and no investigative resources of its own, the Board is also working with other federal agencies "to help foster joint efforts to enforce the Act."(178) Whether these coordinated enforcement efforts, coupled with the minor technical amendments to the Act made by the ambitiously titled Indian Arts and Crafts Enforcement Act of 2000,(179) will have an impact on the problems in the market remains to be seen.

One long-time industry observer believes that the quality of the fakes is getting "better"--that is, more authentic-looking and thus harder to detect.(180) Some shopkeepers employ clever methods to get around the IACA. For example, one shopkeeper sold jewelry under the brand name "Indian Maid," thereby enabling him to respond truthfully to customers inquiring whether the jewelry was "Indian made."(181) And what's more, there is even evidence of Native Americans importing the goods themselves and passing the items off as Indian made.(182)

Finally, in what surely ranks as the most bizarre story associated with the IACA, the New York Times reported that an American entrepreneur had set up a jewelry manufacturing enterprise in a small village in the Philippines to take advantage of low labor costs there. Remarkably, he was able to convince the village to rename itself "Zuni" so that the imitation Indian products shipped from there could legitimately bear the stamp "Made in Zuni." In so doing, he hoped to create the false impression that the goods came from Zuni, New Mexico, home of the Native American tribe of the same name.(183) This, in an anecdotal nutshell, is the reality of Indian arts and crafts in the globalized age.

III. CULTURAL SURVIVAL IN A GLOBALIZED ECONOMY
   Native peoples discuss the issue of cultural appropriation in a manner that
   links issues of cultural representation with a history of political
   powerlessness.(184)


As Parts I and II have demonstrated, behind at least some of the impetus for, and surrounding much of the rhetoric about, the Indian Arts and Crafts Act lies an argument about "cultural survival." As Part II.C suggests, at its baldest, the IACA's civil provisions are intended to remedy injuries to Indian culture itself. The argument for a legal regime designed to ensure "cultural survival" rests upon a fundamental assumption that culture itself is a stable category capable of legal intervention. But as legal commentators have pointed out, "the concept of culture is troublingly vague and, at the same time, hotly contested, and law's relation to culture is as complex, varied, and disputed as the concept itself."(185)

Part of the problem with pinning legal rights to "culture" is that the term can be used as a catchall phrase for "almost any motivation for human behavior."(186) At its most beguiling, culture is simply "the way we do things." The difficulties in constructing a legal regime around such a concept lie in defining exactly who "we" are, as well as exactly what "things" we do and exactly how we "do" them. It is not immediately clear just how and by whom such definitions are to be made.(187) The uproar over the IACA shows the difficulty in accomplishing this task in a coherent way, even while building on an established body of federal Indian law.

This Part employs the tools of critical theory to reveal the inadequacies of a legal regime designed to preserve culture. Specifically, this Part critiques the tendency to view both "Indian tribes" and "Indian arts and crafts" as monolithic artifacts and probes the uncritical embrace of Indian tribes as guarantors of timeless artisanal traditions. This note argues that such ahistorical fetishizing obscures the complex ways that a host of institutions have created what has become known as "Indian arts and crafts" and ignores the extent to which the IACA's arbiter of genuineness--Indian tribes--is a creation of federal Indian law and policy. Finally, the note argues that this historically ignorant and philosophically unreflective lawmaking has severe implications for the construction of both collective and individual identities and the constitutive and interdependent relationship between the two. In the end, this note suggests, laws aimed at preserving culture may prove to be disastrously poor mediators of the identities out of which such cultures grow and are sustained.

A. The "Salvage" Paradigm and the 1935 Act

Both the Indian Arts and Crafts Act of 1990 and the original 1935 Act upon which it builds can be seen as examples of what cultural anthropologist James Clifford has called the "salvage paradigm."(188) Simply put, the "salvage paradigm" represents an attempt by an outsider (anthropologist, social scientist, lawmaker) to "rescue `authenticity' out of destructive historical change."(189) In so doing, the salvaged objects (or culture itself) that are supposedly saved from destruction undergo a process of ossification and reification; removed from context, the contingencies of their existence and their past history are wiped away. The transformative process creates something quite "new" in the appropriator's culture.(190)

If the IACA is analyzed under this theoretical construct, then the hollowness of "cultural survival" rhetoric is revealed, for the very efforts to salvage Indian arts and crafts ensure that what is "saved" will turn out to be something quite different. Moreover, because the IACA builds on earlier salvage efforts, any belief that what is being saved represents tradition reaching back to a centuries-old, pristine, pre-market era is sheer romanticism.

Recent scholarship in cultural criticism, anthropology, and art history and criticism has recognized that our present understanding of "Native American arts and crafts" is the result of a complex history of cooperation, adaptation, appropriation, and exploitation between federal government programs, social science practice, private collecting, entrepreneurial effort, and Native American production.(191)

In this sense, for the Wall Street Journal (and other critics of the IACA) to argue that the federal government is out of place in its regulation of Indian arts and crafts is to ignore the history of the federal role in the industry.(192) Likewise, for Ben Nighthorse Campbell (and supporters of the Act) to argue that the IACA of 1990 is needed to preserve the cultural heritage of Indian arts and crafts is to obscure the historical development of those crafts. The rhetoric on both sides also masks the ingenuity, resourcefulness, and entrepreneurial efforts of Native Americans in the creation of the market for arts and crafts.

While this note cannot provide a detailed account of the scholarly efforts that give the lie to these quixotic claims, an analysis of the legislative history of the original Act of 1935 illuminates the salvage paradigm in action and is particularly appropriate since the IACA builds upon this legislation.(193)

The 1935 Act, entitled a "Bill to promote the development of Indian arts and crafts and to create a board to assist therein, and for other purposes," was passed by the 74th Congress and signed by President Franklin D. Roosevelt as part of the Indian New Deal Policy.(194) The primary result of the legislation was the creation of the Indian Arts and Crafts Board, whose mandate was to (1) promote the market for Indian arts and crafts and (2) prevent fakes from entering the market. The salvage mission of the IACB is clearly evident from the description of the Board by the chronicler of its early years:
   New Deal Indian policy was a government attempt to resurrect and to
   preserve not only the individual identity of the oldest culture in America
   but also its very existence. The Indian Arts & Crafts Board was one of the
   vehicles adopted by the New Deal administration to carry out that
   policy.(195)


Like the IACA, the 1935 Act was passed in response to threats to the economic and cultural survival of the Indians. The threat in the 1930s came not from overseas, but from machine-produced goods and from "inauthentic" goods made by Anglos and Hispanics.(196)

Senator Elmer Thomas sponsored the bill and authored the Senate Report that reveals the context for congressional action.(197) A close reading of this legislative history demonstrates that the salvage paradigm is clearly implicated.(198)

The Report began with a description of the dire economic conditions on Indian reservations, and the possible economic relief artisanal production could provide. "On many reservations the only chance to obtain cash to supplement subsistence farming is through self-employment. The native handicraft affords a means of employment at home during odd hours when the farm, garden, and livestock do not require attention, and in which all members of the family may participate."(199) The Report then discussed the demand for Indian arts and crafts and the (perhaps) inevitable existence of fakes to meet that demand.
   There is a definite demand on the part of the public [i.e.,
   Anglo-Americans] for Indian arts and crafts products. This demand has led
   to the manufacture of imitations by machinery and the market is being
   flooded with low-cost spurious articles to such an extent that the sale of
   the genuine handicrafts is seriously affected.(200)


Like the cheap, imported fakes of the late twentieth century, these "spurious" goods were eroding consumer confidence. "This bill offers a means whereby the public, which is desirous of obtaining only the genuine Indian handmade article, may be assured of getting it and the Indian worker may be protected from cheap imitations."(201)

The report of the special committee which Secretary of the Interior Harold Ickes established to study the problems in artisanal production of Indian crafts ("the Committee on Indian Arts and Crafts" or "Committee") was attached to the Senate Report. The Committee reported that the chief obstacle for the Indian arts and crafts market was that these items were no longer produced for consumption by Indians.
   Only to a limited extent are any of these products produced today primarily
   for the use of the producers. The Navajos wear their own jewelry, but they
   do not use their own rugs. For practical use the Pueblo woman is likely to
   prefer a lard pail or tin pan to her pottery. There is some production of
   moccasins, costumes, and textiles for ceremonial use, but, by and large,
   shoes and machine goods have replaced them for everyday wear.

   Thus, while these products are vestiges or adaptations of products
   originally made for the Indians' use, they are produced today primarily for
   the market. The motive behind their production is nearly always a need for,
   or desire for, a cash income. They represent an attempt to capitalize
   native materials and old skills for the purposes of trade.(202)


The Committee members, many of whom collected Indian arts and crafts, feared that without intervention this mode of production would soon cease to exist. "Unless these products will sell [in the marketplace] they will cease to be produced, except perhaps for lingering ceremonial usage.... Hence the very preservation of these products as expressions of Indian life, or as art, depends upon the market and upon bringing art attractive return to the maker."(203) Thus, the market would be the savior of the Indian way of life, and the Indian Arts and Crafts Board would provide the essential marketing efforts in this regard.

In determining how the Indian Arts and Crafts Board would accomplish its goals, the Committee summarized the precise challenge for Congress in assigning powers to the IACB by asking: "How can the economic welfare of the Indians be advanced by the Government, in cooperation with the Indians through arts and crafts, without loss to the vitality of Indian art, and without damage to the integrity of Indian life?"(204) While the Committee seemed to recognize implicitly the potential impact that the salvage paradigm would have on Indian culture, the Committee rationalized intervention by arguing that this "adaptive approach"(205) was in the best interests of Native Americans, since what was "essential" about Indian arts and crafts would remain:
   [W]hat is vital and essential in Indian art is: First, what the Indian has
   within himself--his feeling for form, color, and design; and, second,
   certain characteristics in his products which can only be retained by true
   handcraft methods of production. This view [i.e., an adaptive approach]
   would prohibit the use of any more efficient aids to production which might
   alter the essential esthetic character of the product. But it would
   encourage the use of such technical processes as better firing methods,
   which without altering the essential character of the product, would
   improve the product or lower the labor cost in producing it. It would
   assert that the Indian may retain his essential characteristics as an
   artist and a craftsman and make, as he has in the past, new adaptations to
   a changing world, and employ new materials, tools, and facilities in the
   expression of his arts.(206)


Thus, while the Committee acknowledged that this view "involves risks to Indian art and ways of life," not to allow adaptation made it "questionable" whether a wider market could be created and, subsequently, whether arts and crafts would survive at all.(207) That outcome could not even be contemplated by the Committee.(208)

Thus, a close reading of the Report reveals the legislated role of the Indian Arts and Crafts Board in preserving, protecting, reviving, and adapting Indian arts and crafts for the market.(209) Equally important, but often obscured by "cultural survival" rhetoric, the Report points out the resourcefulness of Native American producers amid this project of colonial cultural imperialism. The Report acknowledged that the existent production of crafts "represent[s] an attempt [on the part of Indians themselves] to capitalize native materials and old skills for the purposes of trade."(210) So, even while Indian arts and crafts themselves may not embody traditional, ancient, timeless ways of life, nevertheless the adaptive ingenuity and entrepreneurial efforts of Native Americans emerge from this historical inquiry as the "real" tradition.

B. Postmodern Political Economy

If contemporary Indian arts and crafts are the result of these salvage efforts, it may be tempting to view them (both the "genuine" ones and, in particular, the imitations) as manifestations of postmodern commodification.(211) According to cultural critic Frederic Jameson, as the logic of the market is brought to bear more often and more acutely on "culture," the very forms that culture takes are shaped anew.(212) The fundamental characteristic of postmodern culture is a crisis in historicity in which the "past" is reduced to "nostalgia."(213) Perhaps the paradigmatic form that postmodern culture takes is pastiche. Jameson's vivid and powerful description is worth quoting:
   Pastiche is, like parody, the imitation of a peculiar or unique,
   idiosyncratic style, the wearing of a linguistic mask.... But it is a
   neutral practice of such mimicry, without any of parody's ulterior motives,
   amputated of the satiric impulse, devoid of laughter and of any conviction
   that alongside the abnormal tongue you have momentarily borrowed, some
   healthy linguistic normality still exists.... [P]astiche is not
   incompatible with a certain humor, however, nor is it innocent of all
   passion: it is at the least compatible with addiction--with a whole
   historically original consumers' appetite for a world transformed into
   sheer images of itself.... It is for such objects that we may reserve
   Plato's conception of the "simulacrum," the identical copy for which no
   original has ever existed. Appropriately enough, the culture of the
   simulacrum comes to life in a society where exchange value has been
   generalized to the point at which the very memory of use value is effaced,
   a society [in] which ... the image has become the final form of commodity
   reification.(214)


Much of Jameson's description seems applicable to Indian arts and crafts: Many of the items produced and purchased today once had a use value, but now their value inheres primarily because of the status of their makers. And if recent scholarship is correct, and there never has been such a thing as "traditional Native American art,"(215) is that not the very definition of "simulacrum" that Jameson proposes? It is difficult not to conclude that at least some of the burgeoning market for Indian arts and crafts represents an ahistorical fetishizing and mythologizing of what consumers imagine to be "Indian."(216)

Even if this description accounts for some of the making, selling, and buying of contemporary Indian arts and crafts, it would be wrong to view the entire enterprise as free-floating, postmodern commerce. A more discerning approach is necessary. To achieve complete accuracy, that approach would account for the unique history and culture of each and every group of Indians, and the place of arts and crafts therein. But such an exhaustive anthropological survey is beyond the scope of this note.(217) What's possible is simply to remark, as others have, that the cultural production of most Indian tribes today can be characterized as "culture as negotiation."(218) To be sure, many skilled Native American artisans create objects based on rich artistic and religious traditions, even while employing newer methods or materials or borrowing Western values and concepts.

At the same time, as the quotation from The Economist that heads Part I implies, not all items produced and marketed by Native Americans draw on tribal traditions, and even those that do represent a mixing of influences rather than the distillation of an unchanging timeless "Indianness." Like any market supplier, American Indian craft producers react to--and interact with--the demands of the market. As the legislative history of the 1935 Act reveals, Native Americans have long produced goods directly for the market, and the federal government has long played a role in that market. Moreover, tribal cultural survivalists have long worried about the impact of the market on Native American cultures.(219) Postmodern conditions,(220) marked by the expansion of a global market and the rise of attendant social and political and cultural pressures, accentuate these concerns, and make them manifest in surprising ways. Indeed, the increasingly complicated relationship between supply and demand--in particular the incentivizing effects of consumer demand for arts and crafts produced by indigenous peoples on those indigenous cultures--has been recognized by several recent scholarly studies.(221)

Even if postmodern theories only inadequately explain the commercial exchange of Indian arts and crafts, postmodernism's insight about the ways in which material transformations in capitalism lead to new social tensions helps to explain the uproar over the IACA.(222) Such an understanding recasts the appeal to federal legislation in the early 1990s as the struggle of an indigenous group negotiating for survival in the postmodern world.

The new global division of labor permits replicas and imitations of Indian arts and crafts to be produced cheaply and sold at half of the cost of the ones made by Indians residing in the United States. Transformations in consumption patterns have created an emerging global demand, as markets in Europe and Asia for Native American arts and crafts create pressures in the industry. Postmodern conditions create opportunities for the easy mobilization of capital and labor to satisfy this growing demand. In reaction to these transformations, the IACA attempts to ensure the authenticity of goods and to shore up consumer confidence in the market. To aid consumers (both in the United States and overseas) in their hunt for handcrafts that (they want to believe) are "authentic," the IACA freezes and fixes the definition of who is an Indian, even as the definition fails to capture all Indians. Absent the new global threat of overseas producers, Indian arts and crafts would have continued to be made and sold in the ways that they had been, and the criminal provisions of the 1935 Act would have continued to lie dormant as they had for the previous fifty years.

Such an analysis also suggests the emergence of a newly (politically) powerful group of middle-class Indians (the producers and marketers of arts and crafts) as a player in the global market. To hold its place in this volatile global market, this newly powerful group turned to the state for legal protection, with an argument similar to that of the 1934 Committee: Without state intervention, the Indian way of life will cease to exist. Hence the IACA.

What becomes clear from the tortured ten-year life of the IACA, however, is that the group that pushed for the passage of the Act does not speak for all Native Americans. The conditions of postmodernity exposed these internal social divisions within Native America. In reacting against other players in the global marketplace, and in staking its claim there, this group alienated other Native Americans.

In securing passage of the Act, these new global marketplace stakeholders convinced the state to announce to the overseas producers and importers of imitations and fakes: You cannot sell your goods as "Indian" because you are not members of an Indian tribe. At the same time that the state delivered this message to the intended audience, it silenced those Native Americans arts and crafts makers who cannot, or will not, point to Indian tribal affiliation. In the name of preserving a culture threatened by the new global marketplace, the state made it unlawful for those individuals to call what they do or the way they do it "Indian."

C. Tribalism and the "Rhetoric of Authenticity"

The IACA presupposes only one genuine, authentic way to be an Indian: An Indian, as everybody knows, is a member of an Indian tribe. Even as this definition undergirds much of federal Indian law,(223) it raises troubling concerns in the context of a law designed to ensure cultural survival because it fails to fully appreciate the dialogical processes by which identities, both collective and individual, develop. Fundamentally, this definition assumes that an individual can lay claim to a singular culture of his own, with its own history, and that an individual possesses an identity fully constituted by the traditions of this culture. The monological view of Indian identity feeds, and is fed by, what political philosopher K. Anthony Appiah calls "the rhetoric of authenticity."(224)

"The rhetoric of authenticity proposes not only that I have a way of being that is all my own, but that in developing it I must fight against the family, organized religion, society, the school, the state--all forces of convention."(225) Appiah argues that
   This is wrong, however, not only because it is in dialogue with other
   people's understandings of who I am that I develop a conception of my own
   identity ... but also because my identity is crucially constituted through
   concepts and practices made available to me by religion, society, school,
   and state, and mediated to varying degrees by the family.(226)


Appiah suggests further the dialogical nature of contemporary identity construction.
   Of course, neither the picture in which there is just an authentic nugget
   of selfhood, the core that is distinctively me, waiting to be dug out, nor
   the notion that I can simply make up any self that I choose, should tempt
   us. We make up selves from a tool kit of options made available by our
   culture and society.(227)


For Native Americans today, tribalism is one of these "options," but it is not the sole source of Indian identity.(228) To understand why requires some knowledge of the historical development of the "Indian tribe" as an institution of federal Indian law and as an evolving part of Native American cultures generally.(229)

Any understanding of federal responsibility for and power over Indian affairs must begin with the Cherokee Nation Cases.(230) Decided in the early 1830s during a period of uncertain federalism, when the contours of the relationship between the national government and the states were far from settled, the Cherokee Nation Cases arose from the state of Georgia's efforts to take possession of the Cherokee Indians' land, in violation of three treaties between the Cherokee and the United States government. In ruling against Georgia, the Supreme Court enunciated two fundamental yet contradictory ideas that continue to define both the sovereignty of Indian tribes and federal authority over tribes: Indian tribes are "domestic dependent nations" possessing limited sovereignty, and the relation of Indian tribes to the United States "resembles that of a ward to his guardian."(231)

Now to be sure, many "tribes," in both the ethnological and the political sense, had existed long before this articulation by the Supreme Court--and well before 1492.(232) What the Cherokee Nation Cases made clear was that as a legal entity, an Indian tribe owes its existence to a trust relationship with the federal government; as a legal institution, an Indian tribe is a creation of federal law.

Through the direct exercise of this federal power, the United States government has created numerous legal "tribes" where none had existed. In some cases, the federal government united into a single "tribe" the remaining members of several formerly distinct tribes that had been decimated by conquest or disease.(233) In other cases, the government divided a single ethnological tribe into separate "bands" or several politically separate tribes, each its own tribe in a legal sense, to facilitate administration and management.(234) And in other cases still, in the 1950s and 1960s, the government ended its legal trust relationship with over one hundred tribes--thereby "terminating" the tribes in a legal sense.(235) While most of the 556 federally recognized tribes can be characterized as "historic" tribes--that is, in the words of the Department of Interior, existing from "time immemorial"(236)--perhaps as many as 230 so-called "non-historic" tribes were "created" by the United States government.(237)

The critical point here is not that there are differences in tribal pedigree. In fact, a 1994 amendment to federal law prohibits federal agencies from making any distinctions whatsoever between historic and "non-historic" tribes.(238) Understanding the extent to which many "Indian tribes" themselves have been legally constructed, though, should complicate any easy notion of tribes as timeless, unchanging organic entities.(239) Moreover, it is only since the Indian New Deal of the 1930s that the "Indian tribe" has become the primary legal institution through and by which the United States government deals with individuals of Indian descent.(240) As a result, tribes as political, social, economic, and cultural institutions within Native American cultures have evolved to fulfill this role.(241) Today, many Indian tribes closely resemble Anglo-American local governments, wielding considerable power and managing significant resources.(242) Thus, the decision of the United States government to legally recognize a group of Indians as a tribe brings valuable benefits, making recognition a highly sought-after status. The prospective, as well as historic, exercise of this federal power has direct implications for the sale of arts and crafts today under the IACA. An individual of Indian descent whose tribal entity with which she affiliates has not been recognized, or whose tribal entity has been terminated,(243) fails to meet the IACA's definition of "Indian" and, thus, is not "Indian."(244)

What's more, even as most Native Americans today hail the greater degree of self-governance and economic development that the policies of tribal self-determination have brought about,(245) many continue to view federal Indian law and policy, particularly the legal institution of the tribe, as tools of colonial rule.(246) For some of these individuals, their identity as an "Indian" is not much bound with membership in an institution produced by imperialism. To insist on tribal membership, especially when the membership requirements often "ape[]" former colonial policies that "advance[] genetics as the linchpin of identity" in their insistence on blood quantum, might be morally repugnant, ideologically impossible.(247) For some "post-Indians," the entire enterprise of naming--of tribes or individuals--represents the inevitable, inescapable, and ultimately absurd logic of federal Indian law.(248)

Demographic changes, too, are altering the relationship that many Indians have with Indian tribes. As more Native Americans live in urban environments rather than on reservations, strong identification with a specific tribe may be waning.(249) For individuals of mixed Indian descent, tribal affiliation may hold a lesser degree of importance in the constitution of their identities.(250) For many younger Indians, tribal affiliation may be losing its saliency. In fact one commentator has noted the emergence of an urban, pan-Indian identity especially among younger Native Americans reared in cities rather than reservations.(251) With the coming of age of "second- and third-generation off-reservation people," UCLA sociologist Duane Champagne predicts that "It]his group may well be on their [sic] way to creating an intertribal, ethnic Native American identity and community organized in very different ways from tribal communities."(252)

None of these observations is meant to discount the real desire of many Indians to preserve a specific tribal identity or culture, of which arts and crafts are part. This brief overview demonstrates, however, that in constructing her individual identity, as an "Indian" or otherwise, a Native American can choose to mediate her relationship with an Indian tribe in a variety of ways.(253) It thus challenges the coherentist assumptions(254) (about what it means to be Indian) underlying the IACA that would enable the Act to be an effective tool of cultural survival. Even if the Act helps Indian tribes preserve a part of their cultures, and even as desirable as this outcome may be, it does so by exacting a price on individual autonomy.

Appiah's insights are again useful for understanding why this may be problematic. Appiah recognizes the authority of the state to grant certain identity-generating "life-scripts" to groups based on collective identities. But he worries that, because the "rhetoric of authenticity" operates so deeply, the empowering, dignity-granting scripts that these groups create, such as what it means to identity positively as gay or black in a homophobic or racist society, may end up as the only ways--the authentic ways--to be "gay" or "black." Appiah is quick to point out that he surely would choose these (perhaps limiting) dignity-granting scripts over life in the closet or under Jim Crow. But he would prefer not to have to choose. As someone who takes individual "autonomy seriously," he wonders "whether we have not replaced one kind of tyranny with another"?(255)

Similarly, the IACA, by legally requiring Indians to seek out either tribal membership or certification in order to sell arts and crafts, has created the only legitimate "life script" when it comes to making and selling Indian arts and crafts.(256) And while, to paraphrase Appiah, most would choose economic and cultural justice over relegation to a poverty-stricken existence on the reservation, the law should recognize more possibilities. A legal strategy to preserve Indian arts and crafts must acknowledge those individual Indians who cannot or will not enroll as a member of an Indian tribe, and those who cannot or will not face the certification process.(257)

Far worse than infringing upon individual identity construction, though, the civil provisions of the IACA hold the potential for wreaking even greater havoc. The Act gives Indian tribes and tribally affiliated Indians (as well as the federal government) the right to sue any maker or seller of arts and crafts who "falsely suggests" the goods are Indian. Included in the pool of possible defendants are those individuals of Indian descent who fail to satisfy the Act's definitions.(258) A law designed to preserve American Indian culture could very well end up pitting Indian against Indian in federal court, where one Indian will coerce another Indian into defending his or her Indianness, to the satisfaction of judge or jury.(259)

IV. CERTIFYING "GENUINENESS": THE NEGLECTED TRADEMARK PROVISIONS
   It is particularly important that a consumer be able to identify genuine
   work....(260)


The danger posed by imitation Indian arts and crafts to the integrity of Native American culture is perceived as real. There is little gainsaying that the initial distributive impulse of the IACA is the right and just one; Indian tribes should have some right and authority in this area of cultural production. Any solution to the problem of fake Indian arts and crafts, however, must strike a reasonable balance between the desire to preserve tribal identities and the autonomy of an Indian individual to mediate her relationship with a tribe. When the state attends to the political desires of a group based on a collective identity, it must also allow room for individual autonomy.

The following proposals are offered in light of these insights. Moreover, the proposals rely on the legislative intent and history of the Act to refocus the federal efforts aimed at protecting the market for Indian arts and crafts from imitation goods.

A. Proposed Solutions

1. Repeal the civil cause of action and the definitions.

Congress should repeal the civil cause of action currently available to Indian plaintiffs and the Attorney General.(261) Congress should also repeal the definitions of "Indian" and "Indian tribe" in the Act. To combat deceptive advertising and fraud in the market, Indian plaintiffs would still be able to rely on existing state fraud and unfair competition laws, and, at the federal level, the Lanham Act.(262)

2. Repeal the criminal provisions.

Congress should repeal the criminal provisions of the Act.(263) State attorneys general should increase their efforts at enforcing existing state Indian arts and crafts laws. At the federal level, more effort should be made to enforce existing customs and trade regulations. Additionally, the Federal Trade Commission should increase its efforts at using Section 5 of the Federal Trade Commission Act to combat the production and sale of fake Indian arts and crafts.(264)

3. Beef up the trademark provisions and develop a certification mark facilitation program.

Congress should appropriate more funds to the Indian Arts and Crafts Board so that the trademark provisions of the IACA can actually be implemented. At the time of the IACA's passage, this provision was seen as the most promising part of the Act.(265)

Specifically, the Board should work with tribes to facilitate the development and registration of certification trademarks for any eligible Indian tribe or arts and crafts organization.(266) Certification marks are analogous to the appellation of origin scheme used in France for sparkling wines from the Champagne region (as well as in other countries for other foodstuffs).(267) The Indian Arts and Crafts Board currently administers its own certification mark program and makes its mark available to any "Indian, Eskimo, and Aleut crafts marketing enterprise" that meets the eligibility criteria.(268) In the certification mark program proposed here, however, the tribe or arts and crafts organization would directly control the certification mark.

Additionally, Congress must amend the Act to clarify two ambiguities in the statutory language that have prevented the Board from devising a trademark registration program.(269) In current form, the trademark provisions leave the scope of the IACB's trademark powers in doubt. One section authorizes the IACB to create trademarks of genuineness and quality for individual Indians, Indian tribes, and Indian arts and crafts organizations.(270) A later section authorizes the Board to register with the United States Patent and Trademark Office (PTO) those marks for individuals and tribes, but that section is silent about marks for arts and crafts organizations.(271) Given the legislative intent to expand the Board's trademark powers, coupled with the fact that tribal arts enterprises and cooperatives are increasingly responsible for much of the marketing and sale of arts and crafts, the silence is likely a drafting oversight.

More problematically, the Act's trademark registration provision conflicts with the ownership requirements of federal trademark law as set forth in the Lanham Act. In current form, the IACA authorizes the IACB to register a genuineness and quality "trademark owned by the Government in the United States Patent and Trademark without charge and assign it and the goodwill associated with it to an individual Indian or Indian tribe without charge."(272) Thus, the IACA contemplates initial ownership by the United States government followed by a subsequent transfer of rights in the trademark to an Indian individual or tribe. This scheme, however, does not accord with the Lanham Act. It is an axiom of trademark law that the owner of the mark is the person who uses the mark or controls the nature and quality of the goods identified by the mark.(273) Under the scheme contemplated by the IACA, the United States government does not meet this definition of "owner." Under the Lanham Act, the applicant to register a trademark must be the owner, or if the application is for intent-to-use, the applicant must be entitled to use the mark and have a bona fide intention to use the mark.(274) Thus, the registration by the United States government of mark in which an Indian is the true owner would be defective under the Lanham Act. There is no way to cure a defective registration after the fact; it is simply void.(275) Congress should amend the Act to clarify that the Board is authorized to facilitate the registration of trademarks that are owned directly by Indian individuals, tribes, and arts and crafts organizations.(276)

B. Effects

These proposals would have the salutary effects of restoring consumer confidence, combating foreign fakes, and encouraging local implementation and enforcement of the law. By repealing the restrictive definition of "Indian," the proposal would unlock the stranglehold that the IACA currently has placed on the use of that term in the making and selling of Native American arts and crafts. The proposed certification mark program would permit each tribe to make its own accommodation with the market. The proposals are consistent with the legislative intent of granting tribes considerable authority in this area, but they also recognize the autonomy of individual Indians to define their ethnicity and to reach an individual accommodation with a tribe.

Under this scheme, individuals would be able to use freely the labels "Indian" and "Native American" and even tribal designations--to borrow from Appiah, those scripts will be available for all to use in their acts and their identities. Notably, there would be no state compulsion. No person of Indian descent would be forced by federal law to enroll in--or to seek certification as an artisan by--a tribe in order to call her art, her handicraft "Indian" or "Native American," or even Navajo or Hopi for that matter. There may well be coercion by family or friends or tribe to enroll. There may well be resistance (against these forces of convention) on the part of the individual. But there would not be a federal law to which these forces of convention could point; nor would there be coercion by the state. There would be only the official state recognition of the autonomy of the individual and the autonomy--actually, the sovereignty--of the tribe. The state would grant to tribes the authority to produce one sort of available script, and the individual would then be free to adopt it, in whole or part, or to rebel against it, in whole or part. Removing such identity-constructing scripts from the realm of the "legal" would allow a richer, more robust, truly dialogical identity construction to take place.

Moreover, the proposals are consistent with efforts underway by the largest tribal producers of crafts.(277) Both the Zuni(278) and the Navajo(279) are gearing up for major marketing campaigns, and other tribes and arts and crafts groups(280) are considering developing and registering trademarks.(281) As tribes increase their marketing efforts and seek to market their crafts overseas,(282) certification marks will become important legal and marketing tools.

C. The Risks of (Resorting to) Property Regimes

The adoption of these proposals, especially the increased reliance on the trademark provisions of the Act, would not be without significant risks. For some Indian traditionalists, adopting an intellectual property regime represents acquiescence to the West.(283) But such extreme positions ignore the reality that many tribes already are part of the global world economy. For those tribes who want some element of control over the dissemination and use of cultural symbols, the proposed property regimes would give them just that.

Of greater worry is the ossifying and incentivizing effects that property regimes might have on the social and cultural production of tribes and individuals.(284) Ultimately, the extent of this concern will depend on how an Indian tribe(285) chooses to set the certification mark standards. In considering the qualities and characteristics of the arts and crafts it certifies, a tribe will have to decide whether and how the standards it sets will permit innovation and evolution.

Moreover, the tribe and its members will have to decide, collectively and individually, whether they wish to maintain the sort of relationship that a certification mark program entails. As the owner of a certification mark, an Indian tribe will be required to adhere to the strict standards of enforcement and control mandated by the Lanham Act.(286) Legally, the tribe will have an affirmative duty to monitor users of the certification mark to ensure compliance with the standards that the tribe has established. Individual users of the certification mark will be bound to follow the criteria established by the tribe. Thus, a certification mark program will do little to alleviate the autonomy concerns of tribal members who do not conform to the established standards. But quintessentially, this is a controversy for a tribe and its members to settle, not federal law.(287)

V. CONCLUSIONS: POSTSCRIPT AS PRELUDE

By all accounts, the criminal and civil provisions of the Indian Arts and Crafts Act of 1990 have proved ineffective against the manufacturers, importers, and sellers of imitation Indian arts and crafts. It is too early to tell whether the minor amendments made to the Act in October 2000 will increase their effectiveness. What is clear at the ten year anniversary of the Act, however, is that this legal regime designed to ensure cultural survival raises many troubling concerns. In lieu of a formal conclusion, this final part presents brief sketches of several recent events to suggest the continued inefficacy of lawsuits and prosecutions under the IACA, even as amended, in solving the problems of the market for Indian arts and crafts.

First, two stories of enterprising Indians, one an ironic anecdote of embarrassment, the other an illustration of the "messiness" of the "genuineness" question. Both point to the impotence of the IACA in difficult issues. In the summer of 1997, a newspaper editorial took Ben Nighthorse Campbell to task for his "Spirit of the Thunder Collector's Knife."(288) Although Campbell designed the knife, which is sold by the Franklin Mint, the knife is actually assembled by factory labor in China. Is Campbell violating the IACA? Advertisements by the Franklin Mint contain photographs of him in full war bonnet and traditional Native American dress, certainly "suggesting" that the knife is made by an Indian. His son, who runs Nighthorse, Inc., Campbell's jewelry design company, claims that his father is not violating the Act: Since Campbell designed the knife, it is "made" by an Indian.(289) It is unclear whether a court would agree.(290)

In another recent controversy, the Hopi tribe has accused the Navajo tribe of making fake kachina dolls, appropriating a Hopi craft that has no traditional basis in Navajo culture.(291) According to Leigh Jenkins, director of the Hopi cultural preservation office, "[The Navajos' craft] work technically meets the letter of the law, but it's members of another tribe appropriating the religious symbolism of another tribe."(292) The Navajo carve the dolls from balsa wood, while the traditional Hopi kachina doll is made of cottonwood. Under the IACA, the Hopi would have no cause of action, since the Navajo themselves are Indians.(293)

Finally, the note offers two snapshots to illustrate the increasingly global nature of Native American arts and crafts industry and the difficulty of enforcing a cultural preservation law in a globalized age. First, sales of arts and crafts on the Internet continue to grow. Direct your web browser to www.buckagram.com, and you will enter the website of Bob Nizza, American expatriate originally from Connecticut, now living in Thailand and openly selling admittedly fake Indian jewelry over the internet from Bangkok.(294) While Nizza himself appears to be in compliance with the Act, since he clearly identifies his jewelry as "Indian-style," other Internet retailers may be in violation of the Act.(295) Ferreting out fakes in the Internet environment, a notorious breeding ground for fraud, may prove a Herculean feat. Moreover, gaining personal jurisdiction over an Internet retailer based outside of the United States might also prove difficult.

Second, the interest in Native American culture abroad continues to grow.(296) For instance, in truly postmodern fashion, summer visitors to a "Wild West" theme park just outside Hamburg, Germany, pitch tepee tents and play "cowboys and Indians."(297) As the mythologizing of American Indians spreads across the globe--as Europeans hawk Indianness on the Elbe--it is not immediately clear how the IACA's civil right of action helps preserve American Indian culture.

The stark, present-day reality of Indian arts and crafts in the global economy is the Philippine "Zuni" villager toiling to make Native American-style handcrafts under the direction of an Anglo, expatriate boss for consumption by Asian tourists at the Hamburg "Indian" theme park or for sale in cyberspace. Equally stark is that the civil action component of the IACA is ill-equipped to cope with such a reality. To compete in such an environment, and to preserve American Indian tribal heritage, Native American tribes should concentrate their efforts on the existing trademark provisions of the IACA and work in tandem with the Indian Arts and Crafts Board to develop internationally recognized and locally implemented certification marks for their handcrafts.

(1.) A caveat about terminology is in order. As this note hopes to demonstrate, in the field of federal Indian law, as well as in the construction of individual and collective identities, words matter. To write fluidly about these topics, however, requires resorting to convenient, common words. Despite their inadequacies, ambiguities, and limitations, the terms "Native American," "American Indian," and "Indian" are used interchangeably throughout to refer to descendants of the peoples who were living on the North American continent when Europeans first arrived. Moreover, although an attempt has been made to restrict the use of the terms "Indian" and "Indian tribe" to their legal senses, it has proved difficult to do so. It is hoped that context provides the necessary tools to determine what words mean when.

(2.) "Dances With Wolves" Shows the Western Is Back in the Saddle, Associated Press, March 26, 1991, available at 1991 WL 6178561.

(3.) Pub. L. No. 101-644, 104 Stat. 4664 (1990). The bill passed by unanimous voice vote in both the House of Representatives and the Senate on October 27, 1990.

(4.) 18 U.S.C. [sections] 1159(a) (1994).

(5.) 25 U.S.C. [sections] 305e (1994). While the legislative history reveals that Congress was concerned primarily with fake goods imported from overseas, the IACA was intended also to rid the market of goods made and sold by non-Indians in the United States who were "cashing in" on the trendiness of all things "Indian." For instance, see the remarks by American Samoa Delegate Faleomavaega during the congressional debate, suggesting that the IACA would stop those who "knowingly misrepresent[] themselves in the market" as Indians to unsuspecting consumers. 136 CONG. REC. H8292 (daily ed. Sept. 27, 1990) (statement of Del. Eni Faleomavaega).

(6.) 136 CONG. REC. H8293 (daily ed. Sept. 27, 1990) (statement of Rep. Robert Kastenmeier).

(7.) Apparently, "about a third of [the museum's] artists had certification problems." Morning Edition: Indian Arts and Crafts Act Rouses Debate (National Public Radio broadcast, Aug. 13, 1992) [hereinafter "NPR Broadcast"] (transcript on file with the Stanford Law Review).

(8.) James Watts, New Indian Art Law Affects Oklahomans, TULSA TRIB., Dec. 8, 1990, at 1A, available at 1990 WL 8206699. The museum reopened in February 1991 after receiving assurances from the Indian Arts & Crafts Board in Washington, DC, that "`This law deals with commercial offers and transactions ... those merely displaying or possessing an item without intent to sell it are unaffected.'" Keith White, American Indian Art Law Won't Affect Museums, GANNETT NEWS SERVICE, Feb. 25, 1991, available at 1991 WL 5460325 (quoting letter from Secretary of the Interior Manuel Lujan). Although the museum did eventually reopen, it was closed during the lucrative holiday season and, therefore, had to forego income from admission tickets and gift shop receipts during that period.

(9.) Kathi Thacker, Museum Reopens as Fear of Indian Art Rule Eases. DAILY OKLAHOMAN, Feb 18, 1991, at 4, available at 1991 WL 4149643.

(10.) The IACA contains provisions authorizing tribes to establish a certification process whereby Indians who are descendants of the tribe but not enrolled members may be considered part of the tribe for purposes of the Act. 25 U.S.C. [sections] 305e(d) (1994).

(11.) 25 U.S.C. [sections] 305e(d) (1994).

(12.) "Indian law is founded in the political relationship between the United States and Indian tribes." FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 1 (Rennard Strickland ed., 1982) [hereinafter COHEN'S FEDERAL INDIAN LAW]. But, "[t]he term tribe has no universal legal definition. There is no single federal statute defining Indian tribe for all purposes." Id. at 3.

(13.) See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n. 32 (1978).

(14.) As is the case with "Indian tribe," "there is no single statute that defines `Indian' for all federal purposes." COHEN'S FEDERAL INDIAN LAW, supra note 12, at 23. Some federal statutes include multiple definitions of "Indian," which may not reference membership in an Indian tribe at all. See id. at 24. The number of different, often conflicting, definitions of "Indian" in federal law has been estimated at over eighty. Ward Churchill, The Crucible of American Indian Identity: Native Tradition versus Colonial Imposition in Postconquest North America, in CONTEMPORARY NATIVE AMERICAN CULTURAL ISSUES 39, 54 (Duane Champagne ed., 1999).

(15.) "Tribal membership requirements vary widely. Many tribal provisions call for a minimum of one-fourth degree of blood of the tribe in question but a few tribes require as much as one-half degree of tribal blood. A small number of tribes permit any descendant of a tribal member to be enrolled regardless of blood quantum." COHEN'S FEDERAL INDIAN LAW, supra note 12, at 22-23 (citations omitted).

(16.) More expansive "cultural" definitions of "Indian" might also include those persons who adopt certain lifestyles or ways of being, regardless of racial or kinship or political factors.

(17.) COHEN'S FEDERAL INDIAN LAW, supra note 12, at 19.

(18.) The 1990 U.S. Census counted about 1.75 million Indians based on its racial categorization, but an estimated seven million Americans claim descent from an Indian ancestor. Duane Champagne, Introduction: Change, Destruction, and Renewal of Native American Cultures at the End of the Twentieth Century, in CONTEMPORARY NATIVE AMERICAN CULTURAL ISSUES, supra note 14, at 7. "Many in the latter group do not have enduring or recent ties with any particular Native community or culture, but they nevertheless retain a sense of identity and interest in Native issues." Id.

(19.) Consider just three examples. First, children of Indian descent who were adopted by non-Indian families, often as part of a federal policy of forced assimilation, might not know from which tribe they are descended, making enrollment difficult if not impossible. Second, as noted above, enrollment requirements vary from tribe to tribe, and because the requirements are often based on blood quantum, it is entirely possible for a person of mixed Indian descent not to meet the particular requirements of her tribe. Third, although the United States currently recognizes some 556 Indian tribes, see 65 Fed. Reg. 13,298 (Mar. 13, 2000), many other groups of Indians are not legally recognized as tribes by either the United States or a state government. The regulations governing federal recognition of Indian tribes are codified at Procedures for Establishing that an American Indian Group Exists, 25 C.F.R. [sections] 83 (2000). About two hundred groups have petitioned the U.S. government for tribal recognition. Champagne, supra note 18, at 8. At the federal level, Congress can "recognize" a tribe, usually through the existence of a treaty or because the tribe is eligible to receive the array of federal benefits available to "recognized" tribes. See generally COHEN'S FEDERAL INDIAN LAW, supra note 12, at 3-27. Some tribes, like the Abnaki of Vermont, however never consented to a treaty with the United States, and thus have never been "recognized." Churchill, supra note 14. at 54. Other tribes no longer exist as a recognized "tribe," either through voluntary abandonment of tribal status or as a result of "clear and unambiguous legislation" by Congress. COHEN'S FEDERAL INDIAN LAW, supra note 12, at 18. In fact, the federal policy of the 1950s and 1960s "terminated"--that is withdrew federal support for and supervision of--some 100 tribes. While these groups may still exist as tribes in an ethnological sense, they no longer enjoy the legal status of "Indian tribe."

(20.) See, e.g., Churchill, supra note 14, at 54.

(21.) Campbell became an enrolled member of the Northern Cheyenne only a couple of years before the dawn of his political career in 1980. See Al Knight, Regulating Culture, DENVER POST, Mar. 28, 1993, at 1D; Jennifer Gavin, Campbell's Images Not Always Jeweled, DENVER POST, Oct. 25, 1992, at 12A; Jack Anderson, Editorial, Knife Cuts Campbell's Credibility, ST. J.-REG. (Springfield, Ill.), June 22, 1997, at 18, available at 1997 WL 11927211.

(22.) See notes 152-153 supra and accompanying text.

(23.) This note is not the first study to examine the unintended consequences of the IACA, nor is it the first to call for its repeal. This study, however, is the first to examine the consequences of the Act from the perspective of critical theory and to seek a solution to the problem that balances tribal and individual concerns. Moreover, this note is the first to look at the Act since the first criminal prosecutions and civil lawsuits were pursued under it.

The two previous studies of the IACA are a student written law journal note and an anthropology dissertation-cum-monograph. Jon Keith Parsley, Regulation of Counterfeit Indian Arts and Crafts: An Analysis of the Indian Arts and Crafts Act of 1990, 18 AM. INDIAN L. REV. 487 (1993). Parsley wrote the note while a student at the University of Oklahoma Law School. GAIL K. SHEFFIELD, THE ARBITRARY INDIAN: THE INDIAN ARTS AND CRAFTS ACT OF 1990 (1997). Sheffield holds a J.D. but self-consciously avoids making policy recommendations. Sheffield concludes that the IACA is "fatally flawed in a social sense" but states further that it is not her "intention--or place--to comment on the political desirability of the [act]." Id. at 121 (emphasis omitted). Sheffield limits her study to an exploration of "the dissonances that can (and perhaps usually do) arise with the drafting of legislative definitions in furtherance of the purpose of a specific statute." Id. at 4. Additionally, Sheffield makes three claims about the arbitrariness of the Indian Arts & Crafts Act of 1990. First, that the definition of Indian is arbitrary. Second, the process by which a non-tribal member is "certified" as an artisan for purposes of the Act is arbitrary. Third, the ways in which the former two were arrived at were arbitrary. Id. at 121-58.

(24.) On the Warpath, ECONOMIST, Sept. 5, 1992, at 94.

(25.) INDIAN ARTS AND CRAFTS BOARD, U.S. DEP'T OF INTERIOR, AMERICAN INDIAN AND ALASKA NATIVE ARTS AND CRAFTS (1995) [hereinafter ARTS AND CRAFTS BROCHURE]. The southwestern United States remains the center of the Indian arts and crafts industry.

(26.) A definition of "arts and crafts" eludes precision. "Broadly surveyed most legal definitions seems to encompass varying subsets of three aspects: aesthetic representation symbolic of the producing culture, predominance of manual value addition in processing (with handmade signifying potentially more primitive and, hence, authentic creative forms), and small group or community-based organization for production." Kunal Basu, Marketing Developing Society Crafts: A Framework for Analysis and Change, in MARKETING IN A MULTICULTURAL WORLD: ETHNICITY, NATIONALISM, AND CULTURAL IDENTITY 257, 261 (Janeen Arnold Costa & Gary J. Bamossy eds., 1995).

(27.) For an introductory discussion of arts and crafts among the Zuni, the Pomo, and the Catawba, see BARRY M. PRITZKER, NATIVE AMERICA TODAY: A GUIDE TO COMMUNITY POLITICS AND CULTURE 3-11 (1999).

(28.) For a general discussion of categories of indigenous arts and crafts, see the special issue of Cultural Survival Quarterly on ethnic arts around the globe. 6 CULTURAL SURVIVAL Q. Fall 1982. For tourist arts, see the special issue of Annals of Tourism Research edited by Erik Cohen. 20 ANNALS OF TOURISM RES. 1 (1993). The phrase "ethnokitsch" is from Basu, supra note 26, at 259.

(29.) Indian art in the past 20 years has moved from tourist trinkets and road stand souvenirs to highly sought afterwand expensive--works ranging from the traditional to the most modernistic. It is not unusual to see paintings sell for $5,000 and up, prints starting at $100 and sculpture at $15,000 and above.

Bill Johnson, no title, J. REC. (Okla. City), July 20, 1991, available at 1991 WL 5354619. Others are less sanguine about the transformation: "[Tribal leaders] blame the New Age movement for appropriating Indian culture into a kind of secular mysticism." Dirk Johnson, Indians Complain of Religious and Cultural Theft, N.Y. TIMES, June 12, 1993, at A7. No single source provides an adequate introduction to the market for Native American arts and crafts. Two recent publications, however, provide a general basis for understanding and analyzing the market for products by artisans. See MARY ANN LITTRELL & MARSHA ANN DICKSON, SOCIAL RESPONSIBILITY IN THE GLOBAL MARKET: FAIR TRADE OF CULTURAL PRODUCTS (1999); Basu, supra note 26.

(30.) See, e.g., Evelyn Nieves, Powwows: Path of New Traditions, N.Y. TIMES, July 23, 1992, at B4 ("For Indians drawn away from reservations to take jobs, powwows ... are a way to reconnect with Indian society and to express shared pride in native culture."). Powwows also are sites where non-Natives learn about Native culture. See Mark Mattern, The Powwow as a Public Arena for Negotiating Unity and Diversity in American Life, in CONTEMPORARY NATIVE AMERICAN CULTURAL ISSUES, supra note 14, at 129.

(31.) INT'L TRADE ADMIN., U.S. DEP'T OF COMMERCE, STUDY OF PROBLEMS AND POSSIBLE REMEDIES CONCERNING IMPORTED NATIVE AMERICAN-STYLE JEWELRY AND HANDICRAFTS (1985) [hereinafter COMMERCE DEP'T REP.]. See also H.R. REP. NO. 99-162, at 18-19 (1985); CONG. REC. H8292 (daily ed. Sept. 27, 1990) (statement of Del. Eni Faleomavaega). Today, the IACB estimates annual sales at one billion dollars. INDIAN ARTS AND CRAFTS BOARD, U.S. DEP'T OF INTERIOR, FACT SHEET: MISSION AND ACTIVITIES OF THE INDIAN ARTS AND CRAFTS BOARD (1999).

(32.) In 1989, while the national unemployment rate hovered around 5%, the percentage among Native Americans was 46%, a composite figure which concealed the range from a low of 11% on one reservation to a high of 90% on another. STEPHEN CORNELL & JOSEPH P. KALT, WHERE'S THE GLUE? INSTITUTIONAL BASES OF AMERICAN INDIAN ECONOMIC DEVELOPMENT tbl. 1 (Harvard Project on Am. Indian Econ. Develop. Rep. No. 52, 1991).

(33.) See COMMERCE DEP'T REP., supra note 31.

(34.) COMMERCE DEP'T REP., supra note 31, at 5.

(35.) Federal customs regulations now specifically require imported Native American-style jewelry and arts and crafts (e.g., pottery, rugs, kachina dolls, baskets, beadworks) to be indelibly marked with the country of origin. 19 C.F.R. [sections] 134.43(c)-(d) (2000). See also 54 Fed. Reg. 39,520, 39,523-524 (Sept. 27, 1989) (dealing with jewelry); 55 Fed. Reg. 38,316 (Sept. 18, 1990) (dealing with arts and crafts).

(36.) Parsley makes a similar point and recommends repealing the IACA and allowing customs policies to regulate the industry. Parsley, supra note 23, at 511-12.

(37.) See SHEFFIELD, supra note 23, at 148.

(38.) See Parsley, supra note 23, at 494-95 (summarizing legislative history).

(39.) 18 U.S.C. [sections] 1159 (pre-1990).

(40.) According to Campbell, the IACA was an effort to establish a "common denominator nationwide" with a focus, ironically, on protecting those Indians who "don't identify that strongly with a tribe." To Expand the Powers of the Indian Arts and Crafts Board: Hearing on H.R. 2006 Before the House Comm. on Interior and Insular Affairs Held in Santa Fe, NM, 101st Cong. 153 (1989) [hereinafter Santa Fe Hearing] (statement of Rep. Ben Nighthorse Campbell).

(41.) Although an exhaustive, detailed and systematic analysis of the state statutes awaits another study, a quick review of the laws indicates the following. Eleven states regulate the manufacture and sale of Native American arts and crafts: Alaska, Arizona, California, Colorado, Montana, Nebraska, Nevada, New Mexico, Oklahoma, South Dakota, and Texas.

In all of the states except Texas and Alaska, the definition of "Indian" includes those of lineal descent, rather than just those who are enrolled tribal members. Like the IACA, the Texas law requires that Indians be enrolled in a federally or state-recognized tribe. In Alaska, the law applies to Alaska "Natives," defined by a blood quantum requirement of "not less than one-quarter Eskimo, Aleut, or Indian blood." ALASKa STAT. [sections] 45.65.070(5) (Michie 1999).

As for criminal penalties, all states except New Mexico classify fraudulent trade practices in Indian arts and crafts as a misdemeanor. In New Mexico, misdemeanor charges apply, too, but there is also a provision for fourth-degree felonies, if the dollar amount of the fraud is $20,000 or more.

Only three states--Arizona, Colorado, and New Mexico--afford civil litigants a private right of action. Significantly, unlike the IACA, under these state laws, the right is available to "any aggrieved party"--not just to Indian tribes.

Finally, the distinct nature of the Alaska statute bears special mention. Alaska employs an emblem and identification seal scheme to mark Native goods. This emblem scheme is administered by the Alaska State Council on the Arts; from the language of the statute, the scheme appears to be similar to the (as yet unimplemented) trademark provisions of the IACA. The statute states:
   (a) The official authentic Native handicraft symbol is the silver hand
   symbol. It must bear the words: "Authentic Native Handicraft from Alaska,"
   and include a blank line for the artist's name and the place of origin of
   the article. (b) [repealed.] (c) The official emblem for an article that is
   made in the state is a design approved by the commissioner under AS
   45.65.020(a)(2) that depicts a mother bear with a cub and states the words
   "Made in Alaska."


ALASKA STAT. [sections] 45.65.030 (Michie 1999).

For Alaska, see ALASKA STAT. [subsections] 45.65.010-.070 (Michie 1999), "Handicrafts." For Arizona, see ARIZ. REV. STAT. [sections] 44-1231 (1999), "Fraudulent Practices in the Sale of Indian Arts and Crafts." For California, see CAL. BUS. & PROF. CODE [sections] 17569 (West 1999), "American Indian-Made Articles." For Colorado, see COLO. REV. STAT. ANN. [subsections] 12-44.5-101 to -108 (West 1999), "Indian Arts and Crafts Sales." For Montana, see MONT. CODE ANN. [subsections] 30-14-601 to -603 (1999), "Sale of Imitation Indian Articles." For Nebraska, see NEB. REV. STAT. [subsections] 69-1801 to -1808 (1999), "American Indian Arts and Crafts Sales Act." For Nevada, see NEV. REV. STAT. [sections] 597.900 (1999), "Sale of imitation Indian arts and crafts not clearly labeled as imitation prohibited" For New Mexico, see N.M. STAT. ANN. [subsections] 30-33-3 to -11 (Michie 1999), "Indian Arts and Crafts Sales Act." For Oklahoma, see OKLA. STAT. ANN. tit. 78, [subsections] 71-75 (West 1999), "American Indian Arts and Crafts Sales Act of 1974." For South Dakota, see S.D. CODIFIED LAWS [subsections] 37-7-1 to -4 (Michie 1999), "Labeling of Indian Products." For Texas, see TEX. BUS. & COM. CODE ANN. [subsections] 17.851-.853 (West 1999), "Sale of Indian Articles."

(42.) See H.R. REP. NO. 101-400, pt. 1, at 6 (1990) (explaining how a state preemption clause was added).

(43.) See H.R. REP. No. 101-400, pt. 2, at 8 (1990) (explaining that the state preemption clause was removed).

(44.) 135 CONG. REC. E1255 (daily ed. Apr. 17, 1989).

(45.) For subsequent offenses, the term was 18 months. In committee, these terms were later amended (to five years for the first offense and fifteen for subsequent offenses), and the fines were increased too. H.R. REP. No. 101-400, pt. 2, at 14 (1990)

(46.) There was no mention of state-recognized tribes. This was amended in committee. Moreover, there was no provision for non-tribally affiliated Indians. The certification process was later added to remedy this. Id at 2.

(47.) Id.

(48.) Santa Fe Hearing, supra note 40, at 1 (statement of Rep. Ben Nighthorse Campbell). The hearing gathered representatives of the major stakeholders in the Indian arts and crafts industry: about two dozen speakers represented the multiple views of the Indian Arts and Crafts Board, the local U.S. Attorney, Indian tribes, individual Indian artists, arts and crafts associations, and Indian lobbying groups. The hearing was held in Santa Fe because it is "the very heart of Indian country and the Indian arts and crafts industry." Id.

(49.) Only three members of the House spoke at all about the bill; each speaker spoke in favor of the bill. 136 CONG. REC. H8291-01 (daily ed. Sept. 27, 1990). There is no indication in the Congressional Record of any debate in the Senate.

(50.) The following discussion is based primarily on the comments and testimony presented at the Santa Fe Hearing. See Santa Fe Hearing, supra note 40.

(51.) Under the IACA, properly labeled fakes are allowable. The use, for instance, of "Indian-style" or "Native American-style" is allowed under the regulations. 25 C.F.R. [sections] 309.3 (1999). The most strident defenders of the authenticity of Indian crafts might argue, however, that even this kind of labeling should not be allowed.

(52.) It might also be the case that fakes work to "distort" the historical record. See John Henry Merryman, Counterfeit Art, 1 INT'L J. CULTURAL PROP. 1, 27 (1992). "The social indictment of counterfeit cultural objects contains a number of counts. They are morally offensive; they impair the search for truth; they skew the allocation of scarce resources; they misrepresent the artist; and they are convenient instruments of fraud. The `better'--i.e., the more successful--the counterfeit, the more such trouble it makes." Id. at 34.

(53.) Consider the emphasis on "authenticity" in the analysis of one cultural critic:
   From simple pottery containers to complex sculptural installations, Native
   American artifacts acquire much of their monetary value according to their
   origin in what both Indians and non-Indians regard as the traditional
   ethical values of Native American society. Euro-Americans attach a
   mythology to Indian crafts and other signs of "Indianness," so that the
   objects reflect an idealization of their makers' way of life-the Indian
   respect for processes of nature and natural materials, their
   environmentally sensitive economy, their refinements of handwork, which
   assembly-line labor fails to supply. For better or worse, the worth
   Euro-American society attributes to Indian artifacts is often there simply
   because the work has been done by people considered authentically "native."


Richard Shiff, The Necessity of Jimmie Durham's Jokes, 54 ART J. 74, 74 (1992).

(54.) Statement of Rep. Kastenmeier, supra note 6.

(55.) For a discussion of similar arguments against "cultural appropriation" in the context of a Canadian controversy, see chapter 5, entitled The Properties of Culture and the Politics of Possessing Identity, in ROSEMARY J. COOMBE, THE CULTURAL LIFE OF INTELLECTUAL PROPERTIES: AUTHORSHIP, APPROPRIATION, AND THE LAW 208-47, 210 (1998) (exploring the controversy surrounding a recommendation by the Canada arts council that "government grants should not be made to writers who wrote about cultures other than their own unless the writer `collaborated' with members of the minority group"). The controversy raised issues about the propriety of writers depicting a "culture other than one's own," when or if it was appropriate to "tell someone else's story," and whether it was possible to "steal the culture of another." Id. at 208. Coombe describes how the terms of this debate--culture, authenticity, and identity--were posed in proprietary terms. Id. at 215.

(56.) Advocates of cultural justice acknowledge that "legal consideration of the cultural rights of social or ethnic groups are [sic] barely developed." Andrew Ross, Components of Cultural Justice, in LAW IN THE DOMAINS OF CULTURE 203, 206 (Austin Sarat & Thomas R. Kearns eds., 1998).

A handful of published judicial opinions have examined laws designed to ensure cultural survival, with mixed outcomes. See Tafoya v. City of Albuquerque, 751 F. Supp. 1527 (D.N.M. 1990) (granting summary judgment to plaintiff on claim that city ordinance allowing only members of federally recognized Indian tribes to sell wares in historic "Old Town" district violated Equal Protection Clause); but see Livingston v. Ewing, 601 F.2d 1110 (10th Cir. 1979), cert. denied, 444 U.S. 870 (1979) (upholding city of Santa Fe's policy prohibiting persons other than "Indians" from selling handcrafted goods in historic Portal). The district court in Livingston found that the interests of the state of New Mexico in preserving and encouraging traditional Indian arts and crafts, promoting the survival of certain Indians as cultural and economic entities, and promoting tourist trade were legitimate state interests that were not racially based in violation of Equal Protection. Livingston v. Ewing, 455 F. Supp. 825 (D.N.M. 1978).

These cultural survival arguments have begun to be addressed in legal scholarship. See, e.g., Terence Dougherty, Group Rights to Cultural Survival: Intellectual Property Rights in Native American Cultural Symbols, 29 COLUM. HUM. RTS. L. REV. 355 (1998) (arguing that courts should adopt a "group rights" perspective in the context of Native American claims for cultural survival); Richard A. Guest, Intellectual Property Rights and Native American Tribes, 20 AM. INDIAN L. REV. 111 (1995-96) (surveying U.S. intellectual property laws and the IACA in particular to determine their applicability to Native American claims of cultural appropriation).

In popular discourse, and increasingly in legal discourse as well, these arguments are presented under the rubric of multiculturalism. Attacks from the right on the perceived excesses of multiculturalism are numerous. Left-leaning legal scholars, too, have begun to caution against an uncritical embrace of multiculturalism as a loosely defined justice goal. Rich Ford, for example, urges that legal actors distinguish between a multiculturalism that "demand[s] ... respect and recogni[tion for] any and all cultural differences no matter" and one that "demand[s] that the state and other institutions try to accommodate a diversity of practices when reasonable and that these institutions should spread the burdens of citizenship equally and fairly between groups and avoid basing decisions on illegitimate hierarchies." Richard Thompson Ford, Geography and Sovereignty: Jurisdictional Formation and Racial Segregation, 49 STAN. L. REV. 1365, 1424 (1997). Ford argues that a multicultural approach to law must be "concerned with remedying subordination" not with "symbolism and assertions of cultural or aesthetic merit." Id. "[T]he latter," Ford argues, "is best left to the capable members of arts and humanities faculties." Id. at 1425.

(57.) "Many of those who have suffered socioeconomic injustice perceive their hardship as motivated by, or indistinguishable from, cultural disrespect, even race hatred.... A politics of recognition must recognize these perceptions in addition to recognizing the identities that spring from the ensuing claims for just remedies." Ross, supra note 56, at 205.

(58.) PRITZKER, supra note 27, at 3.

(59.) "The Indian Arts and Crafts Board recognizes that Indian art is an integral and enduring part of Indian life, connecting past with the present and present with the future; it serves multiple and interconnected purposes--economic, cultural, social, and spiritual. It is a universal language." ARTS AND CRAFTS BROCHURE, supra note 25.

(60.) Richard White, All Roads are Good: Native Voices on Life and Culture, NEW REPUBLIC, Apr. 21, 1997, at 33.

(61.) ARTS AND CRAFTS BROCHURE, supra note 25.

(62.) "[T]his romanticism is not confined to whites. There is an Indian trend, particularly among urban Indians, to define more and more of Indian life as sacred." White, supra note 60, at 33.

(63.) It is beyond the scope of this note to provide an intellectual history of the idea of "Indianness" in American political, legal, cultural, and popular thought. Nevertheless, and fully acknowledging the risks inherent in reducing nuanced scholarship to simple description, three recent studies are worth mention.

First, in a provocative study examining the literature of the t920s and the shaping of American identity, literary critic Walter Benn Michaels explores the role played by ideas about "Indians" in the development of notions of ethnicity and cultural pluralism. WALTER BENN MICHAELS, OUR AMERICA: NATIVISM, MODERNISM, AND PLURALISM (1995). In particular, Michaels argues that the idea of "Indians" as a "vanishing" people held powerful sway on the national mind. "[I]f the Indians had not been vanishing, they could not have become the exemplary instance of what is meant to have a culture.... It is because the Indian's sun was perceived as setting that he could become ... a kind of paradigm for increasingly powerful notions of ethnic identity and eventually for the idea of an ethnicity that could be threatened or defended, repudiated, or reclaimed." Id. at 38.

Second, in an illuminating study exploring a series of cultural and political occasions in which Americans have "played Indian," historian Philip Deloria argues that American identity is constructed in part out of a recurring, ever-changing deployment of notions of "Indianness." PHILIP J. DELORIA, PLAYING INDIAN (1998) (exploring how Americans have used ideas about Indians and appropriations of Indian dress and rituals to shape national identity throughout U.S. history, starting from the Boston Tea Party through the New Age movement).

Third, a recent collection of essays explores mythmaking in popular culture and the fabrication of the idea of "Indian," See generally DRESSING IN FEATHERS: THE CONSTRUCTION OF THE INDIAN IN AMERICAN POPULAR CULTURE (S. Elizabeth Bird ed. 1996).

(64.) See, e.g.. Henry Louis Gates, Jr., "Authenticity," or the Lesson of Little Tree, N.Y. TIMES, Nov. 24, 1991, [sections] 7, at 1 (exploring public debate about notions of authenticity and questions of identity in literature). Gates suggests that "like it or not, all writers are `cultural impersonators.'" The same could be said of artists and artisans as well.

(65.) The historical congressional mandate of the Indian Arts and Crafts Board was twofold: (1) promote the market for Indian arts and crafts, and (2) prevent fakes from entering the market. The Board came to collect arts and crafts, partially to aid its effort at marketing arts and crafts. But the collection came from other sources, too. In fact, one of the members of the congressionally sponsored 1934 Indian Arts and Crafts Committee, San Francisco art collector and philanthropist Leslie Van Ness Denman, bequeathed her entire collection of Native American art to Rene d'Harnoncourt, who later bequeathed the collection to the Board. See TRYNTJE VAN NESS SEYMOUR, WHEN THE RAINBOW TOUCHES DOWN (1988). Public awareness of the collection was heightened in 1998 when national newspapers reported the "deplorable" conditions of the storage area for the collection. See John Shiffman, National Treasures Endangered: Collection Languishes in Office Building, USA TODAY, Feb. 12, 1998, at IA. Later that year, Congress passed a law transferring ownership of the collection to the Smithsonian Institution to be part of the National Museum of the American Indian. 25 U.S.C. [sections] 305f (1994 & Supp. 2000). The press also reported the IACB's tiny budget--$967,000--claiming that, when adjusted for inflation, the budget is 46% less now than it was thirty years ago. See id. Moreover, in the budget submitted by the Interior Department for fiscal year 1999, the funding was cut to $932,000. See id.

As for enforcement, the Board is authorized to receive complaints. Most of the complaints involve disputes between merchants and are handled administratively. According to an attorney for the Board, "The majority of complaints have been storeowners arguing with other storeowners. They're trying to drive the competition out of business." Charles Flowers, Fake Indian Art Robs Tribes of Cash, Culture, SEMINOLE TRIB., Aug. 21, 1998, at 1, available at 1998 WL 17192756 (quoting Kathleen Siemont, attorney with the IACB). See also 141 Cong. Rec. E1437-01 (daily ed. July 13, 1995) (statement of Rep. Tim Johnson of South Dakota arguing against the elimination of funding for the IACB).

(66.) The Act makes one minor change, too. The IACA prohibits tribes from charging a fee to certify artisans. 25 U.S.C. [sections] 305e (1994).

(67.) Pub. L. No. 106-497, 114 Stat. 2219 (2000).

(68.) 18 U.S.C. [sections] 1159 (1994). Under the 1935 version, "willful intent" was required, making enforcement difficult.

(69.) The language was added at the suggestion of the Department of Justice. See H.R. REP. NO. 101-400, pt. 1, at 11 (1990).

(70.) 18 U.S.C. [sections] 1159 (b) (1994).

(71.) Again, this language is meant to parallel the Lanham Act.

(72.) 25 U.S.C. [sections] 305e(a) (1994) (as amended). The 2000 amendments added "directly or indirectly" to make clear that "wholesalers and others involved in the chain of distribution" as well as retailers are liable under the Act. See S. REP. No. 106-452, at 4.

(73.) 25 U.S.C. [sections] 305e(c) (1994).

(74.) Thus, subsection (c) provides: "by an Indian arts and crafts organization on behalf of itself, or by an Indian on behalf of himself or herself." Pub. L. No. 106-497, [sections] 2, 114 Stat. 2219 (2000).

(75.) The 2000 amendments added the following language to clarify how treble damages can be assessed: "damages shall include any and all gross profits accrued by defendant as a result of the activities found to violate this subsection." Pub. L. No. 106-497, [sections] 2, 114 Stat. 2219 (2000).

(76.) 25 U.S.C. [sections] 305e(a)(2) (1994).

(77.) 25 U.S.C. [sections] 305e(b) (1994).

(78.) 25 U.S.C. [sections] 305a(g) (1994).

(79.) 25 U.S.C. [sections] 305d(a) (1994).

(80.) 25 U.S.C. [sections] 305d(a) (1994).

(81.) 25 U.S.C. [sections] 305d(b) (1994).

(82.) See 25 U.S.C. [sections] 305e(d) (1994). The inclusion of state-recognized tribes was added at the insistence of advocates for these tribes who have not received federal recognition. These tribes are located in the East. See SHEFFIELD, supra note 23, at 29. Ten states have recognized tribes. See id. at 63.

(83.) 25 U.S.C. [sections] 305e(d)(3) (1994); 18 U.S.C. [sections] 1159(c)(3) (1994); and 25 C.F.R. [sections] 309.2(e). Sheffield raises legitimate concerns about equating state recognized tribes with federally recognized tribes. The latter enjoy sovereignty and a state-to-state relationship with the United States under the Constitution; the same is not so for state recognized tribes. See SHEFFIELD, supra note 23 at 52, 130.

(84.) 25 C.F.R. [sections] 309.4(a)(1). Interestingly, Sheffield points to the case of an adopted, white, non-lineally-descended-Indian artisan who was certified by a tribe before the promulgation of the Final Regulations. That certification raises the question whether this "adopted but nonbiologically related individual [is] `of Indian lineage'." SHEFFIELD, supra note 23, at 30.

(85.) And to boot, the IACA is virtually cost-free, too. The Congressional Budget Office estimated that the IACA would cost less than $100,000 per year to administer. See H.R. REP. No. 101-400, pt. 2, at 9 (1990).

(86.) See 25 U.S.C. [sections] 305e(a) (defining civil offense) and 18 U.S.C. [sections] 1159(a) (defining criminal offense) (1994).

(87.) 25 C.F.R [sections] 309.2(d) (including (by way of illustration) art works and craft items "that are in a traditional or non-traditional Indian style or medium" and handicrafts "created 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"). The question of how much labor must be "Indian" is not addressed. Presumably, machine-made arts and crafts fall under the purview of the Act as well. The 2000 amendments require the Board to "promulgate regulations to include in the definition of `Indian product' specific examples ... to provide guidance to ... artisans as well as to purveyors and consumers." Pub. L. No. 106-497, [sections] 2, 114 Stat. 2219, 2220 (2000).

(88.) See id. [sections] 309.1. The IACA forbids other suggestive labels, too, such as "Native American" and tribal designations. See 25 C.F.R. [sections] 309.3.

(89.) "The Indian Arts and Crafts Act of 1990 is a truth-in-advertising law." INDIAN ARTS AND CRAFTS BOARD, U.S. DEP'T OF INTERIOR, MISREPRESENTATION (1999) (emphasis added).

(90.) But see H.R. REP. NO. 101-400, pt. 2, at 5 (1990) ("[R]esponsibility for enforcement lies with county attorneys who, in the past, have shown little interest in investigating violation of the existing law.").

(91.) 15 U.S.C. [sections] 1125 (a)(1)(b) (1994).

(92.) Trademark owners have significant rights under the Lanham Act. Under [sections] 1114 of the Lanham Act, an owner of a federally registered mark may bring a civil action against someone who causes consumer confusion as to the source of a good. The trademark owner may sue for injunctive relief but recovery of damages requires proof of knowledge. 15 U.S.C. [sections] 1114 (1994). Section 1125(a) allows a civil action for "any false designation of origin, false or misleading description [or representation] of fact" (in connection with a good) that is likely to cause consumer confusion. 15 U.S.C. [sections] 1125(a)(1994). Moreover, [sections] 1125(c) gives protection against dilution of famous marks (and does not require that the mark be used in connection with the sale of a good). 15 U.S.C. [sections] 1125(c) (1994).

(93.) 15 U.S.C. [sections] 45(a)(1) (1994). This Act authorizes the Federal Trade Commission to enforce the provision. 15 U.S.C. [sections] 45(a)(2) (1994).

(94.) See generally Santa Fe Hearing, supra note 40; H.R. REP. No. 101-400, pts. 1-2 (1990).

(95.) "It is particularly important that a consumer be able to identify genuine work, and the strengthened trademark powers in this bill will certainly help Indian craftsmen and the board to achieve that." Santa Fe Hearing, supra note 40, at 13 (statement of Leo Calac, Vice Chairman of the Indian Arts and Crafts Board).

(96.) "We believe that civil penalties are the best hope for enforcement." Id. at 13 (statement of Leo Calac, Vice Chairman of the Indian Arts and Crafts Board). Additionally, William Lutz, U.S. Attorney, District of New Mexico, stated that his office was in favor of the civil remedy, making it clear that criminal prosecution has never happened under the 1935 Act. See id. at 17.

(97.) 25 U.S.C. [sections] 305e(a)(2) (1994).

(98.) SHEFFIELD, supra note 23, at 138. Apparently unfamiliar with intellectual property laws, Sheffield fails to see the analogy between these damage amounts and the statutory damages allowed under the Copyright Act. See 17 U.S.C.A. [sections] 504(c) (1996).

(99.) See SHEFFIELD, supra note 23, at 139.

(100.) Id. at 142.

(101.) 136 CONG. REC. H8293 (Sept. 27, 1990) (statement of Rep. Robert Kastenmeier). Th[e] legislation will improve the ability of American Indians to protect their arts and crafts against frauds and counterfeits. It will do so in three ways: first, by facilitating the development and registration of trademarks for Indian arts and crafts; second, by providing criminal penalties for misrepresenting Indian goods or counterfeiting Indian trademarks; and third, by providing a civil action enforceable by the Attorney General or the aggrieved artisan or his tribe, against persons who represent goods as Indian made when they are not. Id.

(102.) Santa Fe Hearing, supra note 40, at 1 (statement of Rep. Ben Nighthorse Campbell).

(103.) Id. at 13 (statement of Leo Calac, Vice Chairman of the Indian Arts and Crafts Board).

(104.) For a collection of essays on anthropological and historical approaches to this question, see generally ARJUN APPADURAI, THE SOCIAL LIFE OF THINGS (1986). In this collection, see especially Brian Spooner, Weavers and Dealers: The Authenticity of an Oriental Carpet, at 195-235 (discussing "the recognition and application of the criteria ... of authenticity").

(105.) Santa Fe Hearing, supra note 40, at 13 (statement of Leo Calac, Vice Chairman of the Indian Arts and Crafts Board). The version of the bill discussed at the hearing extended only to Indians enrolled in a federal tribe. The inclusion of (1) Indians from state-recognized tribes and (2) Indians certified by either federally or state-recognized tribes came after the hearing. It is unclear from Calac's statement just how broadly defined the IACB thought the term "Indian" should be.

(106.) This brief digression should also point to the difficulty of mapping legal distinctions or designations onto these categories. Of course, any legal definition must be workable by courts; there is little doubt that simply equating "Indian" with "tribe" simplifies the work of any court.

(107.) Still, some observers of the Southwest suggest that "the average tourist expects the word `authentic' to imply that the artist has used a pick and shovel to procure the raw materials that went into the item." Theodore S. Jojola, On Revision and Revisionism: American Indian Representations in New Mexico, 20 AM. INDIAN Q. 41, 43 (1996) (implicating both social science practice and entrepreneurial money-making in the creation of the Indian "mystique" in the early part of the 20th century).

(108.) For empirical survey research addressing the question "what types of characteristics do authentic craft products possess?" see Mary Ann Littrell, Luella F. Anderson & Pamela J. Brown, What Makes a Craft Souvenir Authentic?, 20 ANNALS OF TOURISM RES. 197, 210 (1993) ("Definitions for authenticity were linked with characteristics of the products as well as with the makers and sellers of the items.")

(109.) Of the states that have similar laws, only Texas requires tribal membership. See TEX. Bus. & COM. CODE ANN. [sections] 17.851(1) (West 1999) (defining "American Indian" and "Indian"). For a list of other state statutes, see note 41 supra.

110. 25 C.F.R. [sections] 309.2(d)(1) (emphasis added). As noted in note 87 supra, the 2000 amendments mandate the Board to provide more specific examples of "Indian product."

(111.) Thus, perhaps a final, metaphysical "genuineness" category emerges: the product, by possessing any (or some combination) of these attributes, is transformed into an embodiment of "Indianness" itself. In this way, the object--irrespective of the other qualities that it may possess--is (a form of) cultural appropriation. The commercial exchange that takes place, then, is a sale of "authenticity." And only "genuine" Indians can actually produce this metaphysical aura or mystique of Indianness that is required by consumers in the exchange.

(112.) Editorial, THE DAILY OKLAHOMAN, Feb. 23, 1991, available at 1991 WL 4150224 (pointing out the "outrageous tragedies" caused by the Indian Arts & Crafts Act requirement that Indians who sell art as "Indian made" be enrolled in a recognized tribe, and calling for the law's repeal).

(113.) This is not to suggest that the response was somehow uniform. Clearly, as the prior discussion regarding the passage of the IACA indicates, many Indians supported, and continue to support, the Act. Even among the critics of the IACA, different tribes in different regions of the country reacted and responded to the Act in different ways.

(114.) The Act "has escalated the longstanding hostilities in Indian country over just who is an Indian." Under the authority of the Act, the federal government was placed in the odd role of assisting "Indian activists and tribal leaders who want to wash clean their culture of what they view as a plethora of fakes, phonies and `wannabes' profiting from the current vogue in all things Indian." Jonathan Tilove, Identity Crisis Rips Indian Art World, STAR TRIB., MINNEAPOLIS-ST. PAUL, July 25, 1993, at IF, available at 1993 WL 11312528. The IACA's
   very existence unleashed an utter frenzy of witch-hunting among Indians
   themselves. [A]d hoc patrols of "identity monitors" ... prowl[ed] ...
   museums and galleries, demanding to see documentation of the pedigrees of
   the Native artists exhibited therein, while freelance Indian spokespersons
   advocated that comparable legislation pertaining to "ethnic fraud" should
   be enacted with respect to writers, educators, filmmakers, and journalists,
   among many others.


Churchill, supra note 14, at 55 (citations omitted). See also WARD CHURCHILL, Nobody's Pet Poodle, in INDIANS ARE US?: CULTURE AND GENOCIDE IN NATIVE NORTH AMERICA 89 (1994) (describing activities of self-appointed purity police monitoring Indian identity). In fact, at the Santa Fe heating, and again at the Final Regulations hearings, some Indians suggested that the Act be broadened to include the "passing off" of being Indian to other areas such as literature, music, and dance. See generally, Santa Fe Hearing, supra note 40 and SHEFFIELD, supra note 23. Moreover, tensions regarding the relationship between Indian heritage and art existed long before the IACA. See, e.g., William Hart, Art Imitates Art: Indians in New Mexico Form Group to Prevent Sale of Works by Impostors, DALLAS MORNING NEWS, Sept. 6, 1987, available at 1987 WL 4623194; William Hart, "Indian" Work Argued at Santa Fe Art Gallery: Authenticity Law is Nearly Showstopper, DALLAS MORNING NEWS, Aug. 21, 1988, available at 1988 WL 5486627.

For an introduction to contemporary Native American cultural and political issues, see PRITZKER, supra note 27 (discussing contemporary reservation-based political, social, economic, and cultural concerns--education, health, tribal identity, sacred sites and sovereignty) and the collection of essays in CONTEMPORARY NATIVE AMERICAN CULTURAL ISSUES, supra note 14 (reviewing the struggles for survival faced by Native American, Alaska Native, and Native Hawaiian communities in the twenty-first century).

(115.) The account presented here is the result of comprehensive research in electronic databases available in Westlaw and LEXIS and a complete review of the clippings files maintained by the Indian Arts and Crafts Board; no original field research was conducted. Such an account necessarily must be more evocative than authoritative. By looking at reports of the local reception and implementation of the IACA, this part hopes to demonstrate some of the unanticipated effects and uses of the Act.

(116.) Reactions in Oklahoma can be attributed in part to the history of the federal government's role in Indian affairs. Today Oklahoma is home to as many as nineteen separate tribes, including the Cherokees. Many American Indians living in Oklahoma today are descendants of those whom the federal government relocated--often against their will--there in the nineteenth century under its removal policy. During the late nineteenth and early twentieth centuries, many Indians in these tribes resisted the federal government's policies of land allotment and forced assimilation. See generally COHEN'S FEDERAL INDIAN LAW, supra note 12, at 770-97 (section entitled "Oklahoma" in chapter entitled "Special Groups").

This history has direct implications under the IACA. For example, many Cherokees refused to register on the allotment rolls under the Dawes Act and other federal statutes. Today the Cherokee Nation of Oklahoma uses these allotment rolls as the basis of its tribal enrollment criteria, "[S]ince [the tribal enrollment procedure] takes as its point of departure the Dawes Rolls, it explicitly excludes the descendants of Cherokee resisters...." Churchill, supra note 14, at 55 n. 157. Because these Indians are not enrolled members of a tribe, they are not "Indian" under the IACA. See also SHEFFIELD, supra note 23, at 105-15 (discussing impact of the Act on the Cherokees).

(117.) Implementation of the Indian Arts and Crafts Act: Hearing Before the Senate Comm. on Indian Affairs, 106th Cong. (May 17, 2000) [hereinafter Oversight Hearing].

(118.) In fact, reactions to and actions under the Act have cut an ironic geographic swath across the United States. In the case of the IACA, the ironies of geography are apparent. The legislative initiative emerged in the Southwest, but the bill had to be amended to accommodate the interests of state-recognized Indian tribes in the East. The Act increases the duties of a federal agency located in `Washington, DC. The loudest outcry against the Act came from Indians in Oklahoma, and the first tribe to bring a civil action under the Act resides in Wisconsin.

(119.) B.L. Harrell, Editorial, Indian Arts Act Draws Challenge, TULSA TRIB., Sept. 12, 1991, at 13A, available at 1991 WL 5088107.

(120.) Dora & Jim Malone, Editorial, Art Law is a Joke, TULSA TRIB., Feb. 26, 1991, at 9A, available at 1991 WL 4934911.

(121.) Ken Woodward, Editorial, Arts Law Has Big Impact in Oklahoma, TULSA TRIB., Sept. 18, 1991, at 17A, available at 1991 WL 5088944.

(122.) Lisa Balfour Bowen, Native Artists Step Out in National Gallery Exhibit, FIN. POST, Oct. 19, 1992, at S10.

(123.) In the summer of 1991, the American Indian Contemporary Arts Gallery in San Francisco canceled an exhibit of Jimmie Durham's work. Jesse Hamlin, Indian Artists Need ID, S.F. CHRON., July 9, 1991, at E2, available at 1991 WL 4195876.

(124.) See Bill Johnson, supra note 29.

(125.) See Editorial, Rubber Tomahawks, WALL ST. J., Nov. 4, 1992, at A14, available at, 1992 WL-WJJ 629336 (framing the issue as one of free speech). "We don't let Helmut Kohl decide which American saloon can call itself a bierhaus. Yet now in the name of respecting tribal sovereignty, Indian authorities can regulate the speech of U.S. citizens. Art festivals have dropped the word `Indian' from their titles for fear of the art police." Id.

(126.) See James J. Kilpatrick, Editorial, On Playing an Unjust Game of Indian Certification, NEW ORLEANS TIMES-PICAYUNE, Dec. 12, 1992, at B7, available at 1992 WL 10949295.

(127.) Joan Gilmore, Seminar to Encourage Political Action By Women, J. REC. (Okla. City), Sept. 13, 1990, available at 1990 WL 5842584.

(128.) Kilpatrick, supra note 126, at B7.

(129.) See SHEFFIELD, supra note 23, at 8; see also Thomas Jefferson Center for the Protection of Free Expression, Examples of Center Arts Activities, at http://www.tjcenter.org/arts.html (last visited Sept. 5, 2000).

(130.) "Though regulations in support of the 1990 Indian Arts and Crafts Law have not been written--so it can't yet be enforced--the mere existence of the law has had a chilling effect on the Indian art market." Patricia R. Carrico, Is It Indian Art? A 1990 Law Creates as Much Confusion as Clarity, WASH. POST, May 28, 1993, at G5, available at 1993 WL 2189439.

(131.) The writing of the regulations took much longer than the typical one- to two-year period. Tilove, supra note 114, at 1F. The proposed regulations, in their final form, were published in the Federal Register on October 18, 1994. See 25 C.F.R. [sections] 309 (1999): see also Indian Art Law Rules Written, CHEROKEE OBSERVER, Dec. 31, 1994, at 1, available at 1994 WL 14443546 (citing the acting General Manager of the Indian Arts and Crafts Board as stating that no money was available to hold hearings regarding the proposed regulations in Indian country). Sheffield makes use of the transcripts of one set of hearings sponsored by the State Arts Council of Oklahoma that led to the drafting of the regulations. See SHEFFIELD, supra note 23, at 7-8.

(132.) Knight, supra note 21, at 1D.

(133.) Tilove, supra note 114, at 1F.

(134.) See, e.g., Kilpatrick, supra note 126, at B7.

(135.) See, e.g., Stephanie Berryhill, Indian Arts Act Doesn't Inhibit Rights, TULSA TRIB., Aug. 21, 1991, at 17A, available at 1991 WL 5082501; Ellis Widner, Outlaw Art, TULSA TRIB., June 4, 1991, at 1B, available at 1991 WL 4958361.

(136.) Michelle Quinn, Ethnic Litmus Test a Problem for American Indian Artists, L.A. TIMES, June 18, 1992, at F1, available at 1992 WL 2900486.

(137.) See Mary Voelz Chandler, Indian Art Law Mandates Inclusion Through Exclusion, ROCKY MTN. NEWS, Apr. 4, 1993, at 59A, available at 1993 WL 3770348.

(138.) Alan Dumas, Talk About Diversity: Market is No Longer Just Indian and Has Lots More than Art, ROCKY MTN. NEWS, Jan. 14, 1994, at 3D, available at 1994 WL 6691132.

(139.) Steve Mannheimer, Latest Indian War, This Time in the Arts, Comes Because of Good Intentions Leading "to Hell", INDIANAPOLIS STAR, May 9, 1993, at G6, available at 1993 WL 5321380.

(140.) NPR Broadcast, supra note 7.

(141.) Connie Lauerman, What Do They Have to Prove? Native American Artists Grapple with Questions of Culture, Identity and Seeing Beyond Stereotypes, CHI. TRIB., Dec. 24, 1995, [sections] 7, at 1, available at 1995 WL 13115485.

(142.) See Carrico, supra note 130. The legislative history can, in fact, be read to support this position.

(143.) See 137 CONG. REC. S18150-01 (Nov. 26, 1991) (statement of Sen. Jeff Bingaman).

(144.) Id.

(145.) 25 C.F.R. [sections] 309 (1999).

(146.) The certification of artisans, for example, is limited to those of "Indian lineage." 25 C.F.R [sections] 309.4(a) (1996).

(147.) 25 C.F.R. [sections] 309.3(a).

(148.) 25 C.F.R. [sections] 309.2(d).

(149.) As noted earlier, the 2000 amendments instruct the IACB to promulgate additional regulations providing examples of "Indian product." Pub. L. No. 106-497, [sections] 2, 114 Stat. 2219, 2220 (2000).

(150.) Eagleboy pleaded guilty to a misdemeanor charge of possession of parts of from a golden eagle, which is a protected bird species, and was sentenced to a year of probation and a fine of $250. See Hugh O'Gara, Who Makes Indian Art? Rapid City Man is First to Be Prosecuted under Indian Arts and Crafts Act of 1990, RAPID CITY J. (S.D.), Sept. 19, 1999, at A1; Man Charged with Selling Fake Goods, RAPID CITY J. (S.D.), Dec. 23, 1998.

(151.) See Phil Sahm, The Real Thing, SALT LAKE TRIB., June 4, 2000, at A1; Business Digest: Ex-Utahn Indicted Under Indian Arts & Crafts Act, SALT LAKE TRIB., May 25, 2000, at C1.

(152.) The suit against J.C. Penney is allegedly for over $240 million. See Molly McDonough, Discount Chain Sold Phony Indian Crafts: Tribe's lawsuit, 144 CHI. DAILY L. BULL., Dec. 10, 1998, at 1.

(153.) The suit against Wal-Mart filed in the U.S. District Court for the Northern District of Illinois (No. 98 C 7863) seeks $60 million in compensatory damages and $60 million in punitive damages. Id. Under the IACA, plaintiffs are entitled to attorney fees as well. 25 U.S.C. [sections] 305e(b).

(154.) For information about the Ho-Chunk Nation, see The Ho-Chunk Nation, at http://www.ho-chunk.com (last visited Mar. 26, 1999). The Ho-Chunk trace their written history back to the first encounters with French traders in the early seventeenth century. Id. at http://www.ho-chunk.com/Culture/History/hchistory.htm. Today, the tribe, which recently repurchased 2,000 acres of the original land to which it had claims, operates two casinos in Wisconsin. Id. at http://www.ho-chunk.com/Enterprise/EG.htm.

(155.) The Ho-Chunk Nation sued both locally owned and operated stores as well as local branches of national retailers. Ho-Chunk Nation v. J.C. Penney Co., Inc., No. 98-C-3924, 1998 WL 774118 (N.D. Ill. Oct. 29, 1998); Ho-Chunk ex rel. Native American Arts, Inc. v. Nature's Gifts, Inc., No. 98-C-3951, 1999 WL 169319 (N.D. Ill. Mar. 19, 1999).

(156.) See McDonough, supra note 152, at 241.

(157.) Oversight Hearing, supra note 117 (statement of Jacob H. Lonetree, President, Ho-Chunk Nation) ("Three of the twelve cases are still pending and nine have been resolved through settlement. The exact terms of the settlements are confidential.... But the public record reveals that we have secured injunctions against nine of the defendants."), available at 2000 WL 19304231.

There are perhaps other coordinated litigation strategies underway. According to a newspaper account, a lawyer affiliated with the Center for Law in the Public Interest approached the Navajo tribe with the prospect of pursuing their own line of precedent-setting cases under IACA. That attorney is no longer affiliated with the Center, and attempts to reach him were unsuccessful. See Duane A. Beyal, Tourism Office Hosts Unique Forum to Examine Arts and Crafts Issues, NAVAJO TIMES, May 14, 1998, at A2, available at 1998 WL 12701568.

Other civil plaintiffs have attempted to use the IACA in novel ways to frame causes of action that do not involve crafts. For instance, in a suit filed in Rosebud Sioux Tribal Court against Hornell Brewing Company to forbid the use of the mark "Crazy Horse" on malt liquor, the estate of Tasunke Witko, also known as Crazy Horse, along with the Rosebud Sioux tribe, alleged that the brewery violated the IACA, since the use of the mark suggested that the liquor was "Indian-made." The merits of that cause of action were never reached because the Court of Appeals for the Eighth Circuit ruled that the tribal court lacked jurisdiction over the brewery. Hornell Brewing Co. v. Rosebud Sioux Tribal Court, 133 F.3d 1087 (8th Cir 1998). See also Nell Jessup Newton, Memory and Misrepresentation: Representing Crazy Horse, 27 CONN. L. REV. 1003 (1995) (chronicling the case in tribal court).

In a suit filed in 1999, the Cow Creek Band of southern Oregon's Umpqua Tribe alleged that the makers of the revamped Indian Motorcycle violate the IACA, since the use of the mark "Indian" suggests that the bike is "Indian-made." See Cow Creek Sues Over Indian Motorcycle; Band Invested in Company to Make Bikes, INDIAN COUNTRY TODAY, Aug. 9-16, 1999; Jamie Monastyrski, Cow Creek Band Suit Claims Bikemaker Exploiting Indians, COLUMBIAN (Vancouver, Wash.), Dec. 16, 1999, at B10, available at 1999 WL 30742896; Doug J. Swanson, Rebirth of Indian Motorcycles Runs Up Against Resistance; Tribal Group Sues, Charging Use of Name Is Cultural Theft, DALLAS MORNING NEWS, Sept. 26, 1999, at 1A, available at 1999 WL 28015314.

(158.) "A civil action ... may be commenced ... (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." 25 U.S.C. [sections] 305e(c)(1) (1994). NAA argued that "by" was meant to be read as directly modifying "or on behalf of an Indian arts and crafts organization." See, e.g., Native American Arts, Inc. v. J.C. Penney Co., Inc., 5 F. Supp. 2d 599, 604 (N.D. Ill. May 27, 1998).

(159.) See, e.g., Native American Arts, Inc. v. Moon Raven, Inc., No. 98-C-0434, 1998 WL 325245 (N.D. Ill. June 10, 1998) (dismissing IACA complaint because plaintiff lacked standing under the Act); Native American Arts, Inc. v. Chico Arts, Inc., 8 F. Supp. 2d 1066 (N.D. Ill. June 4, 1998) (dismissing the IACA complaint but allowing state law complaints); Native American Arts, Inc. v. J.C. Penney Co., Inc., 5 F. Supp. 2d 599 (ND Ill. May 27, 1998) (dismissing with prejudice the IACA complaint). The 2000 amendments clarified this language. Indian arts and crafts organizations have standing to bring a civil action under the IACA. Pub. L. No. 106-497, 114 Stat. 2219 (2000).

(160.) For a sense of the nature of the suits filed by the Ho-Chunk, consider the case against the Utah-based company Moon Raven. According to the Salt lake City Tribune, Moon Raven sells products such as "Crazy Horse" healing stones, bone jewelry, and eagle prayer feathers from a catalog which claims that the company is "proud to continue in the great Native American Heritage that [these goods] represent." Jodi Rave, American Indian Craft Company Sues S.L. Firm; Moon Raven Sued by Indian Craft Company, SALT LAKE CITY TRIB., Jan. 30, 1998, at C8 (citing lawsuit filed by Ho-Chunk Nation). The key question of this suit, seeking $5 million, would likely be whether this catalog language "falsely suggests" that the items are "Indian-made." In a countersuit, Moon Raven sued Ho-Chunk for defamation. Id. That suit was later dismissed, for lack of personal jurisdiction over the NAA and the Ho-Chunk Nation. See Shelia R. McCann, Judge Tosses Suit Over Authenticity of American Indian-Like Crafts: Utah Company Is Being Sued by Wisconsin Tribe that Claimed Manufactured Items Violated Federal Law Governing Indian Artwork Sales, SALT LAKE TRIB., Aug. 22, 1998, at B5, available at 1998 WL 4068804.

(161.) Ho-Chunk Nation v. J.C. Penney Co., Inc., No. 98-C-3924, 1998 WL 774118 (N.D. Ill. Oct. 29, 1998). The court deemed J.C. Penney's arguments to be more properly a motion to dismiss. See id. at *2. Making a res judicata claim, J.C. Penney unsuccessfully alleged that in dismissing the prior NAA case against them, the trial judge had effectively barred the refiling of the IACA complaint. See id. at *3. According to a later case, J.C. Penney eventually agreed to pay $1.96 million to settle this case. Native American Arts, Inc. v. Adobe Moon Arts, Inc., No. 00-C-5267, 2001 WL 55544, at *1 (N.D. Ill. Jan. 18, 2001).

(162.) Native American Arts, Inc. v. Village Originals, Inc., 25 F. Supp. 2d 876 (N.D. Ill. Nov. 5, 1998).

(163.) Id. at 880.

(164.) See id.

(165.) Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982).

(166.) Village Originals, 25 F. Supp. 2d, at 880 (emphasis added). Although the court employed the Hoffman Estates test, the trial judge held that "as a matter of law the overbreadth doctrine does not apply to commercial speech in the first instance." Id.

(167.) Id. at 881. In a later case, Ho-Chunk Nation v. Nature's Gifts, Inc., No. 98-C3951, 1999 WL 169319 (N.D. Ill Mar. 19, 1999), the court relied heavily on Village Originals in rejecting similar constitutional challenges to the Act in denying the defendant's motion to dismiss.

(168.) On the special problems of applying equal protection analysis to Indians, see David C. Williams, The Borders of the Equal Protection Clause: Indians as Peoples, 38 UCLA L. REV. 759 (1991) (arguing for recognition that Indians are both a political class and an ethnic class).

(169.) See, e.g., Parsley, supra note 23, at 497-506; 137 CONG. REC. S18150-01 (Nov. 26, 1991) (statement of Sen. Jeff Bingaman).

(170.) A statute may not waive standing requirements that find their source in the Constitution, including injury in fact. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

(171.) 25 U.S.C. [sections] 305a(a), (b) (1994).

(172.) See, e.g., John Shiffman, Indian Art: Buyer Beware $1 Billion Industry Reeling as Faux Crafts Flood Market, USA TODAY, Apr. 8, 1998, at 1A, available at 1998 WL 5721010 (citing various statistics that 40%, 50%, and up to 60% of the market for Indian arts and crafts consists of "fakes"); see also Oversight Hearing, supra note 117 (statement of Jacob H. Lonetree, President, Ho-Chunk Nation) ("The marketplace is still saturated with imitation Indian style products falsely suggested to be Indian-made."), available at 2000 WL 19304231.

(173.) In 1999, however, the New Mexico state attorney general began a crackdown on fake Indian arts and crafts. The attorney general has brought suit under the state Indian Arts and Crafts Sales Act (not the federal IACA). See Brendan Smith, AG Suing Over Phony Indian Crafts, ALBUQUERQUE J., Feb. 5, 1999, at 1. For many years now, the press and others have urged the New Mexico attorney general to take action, but the attorney general claimed that funds were not available. See, e.g., Editorial, AG Should Fight Fake Art, ALBUQUERQUE J., Sept. 28, 1997, at 4, available at 1997 WL 18399389; Ian Hoffman, Too Much Fraud, Artists Complain, ALBUQUERQUE J., Sept. 14, 1997, at 1, available at 1997 WL 1839884.

(174.) See Law Meant to Protect Indian Art "A Joke," Tribes Tell Senate Panel, HOUS. CHRON., May 18, 2000, at 4, available at 2000 WL 4299392.

(175.) The Board has undertaken national and local media campaigns and has established a web site to raise awareness about the Act. Oversight Hearing, supra note 117 (statement of Faith Roessel, Chair, Indian Arts and Crafts Board), available at 2000 WL 19304381. The website is located at http://www.doi.gov/iacb.

(176.) As of May 17, 2000, the IACB had received 45 complaints. Oversight Hearing, supra note 117 (statement of Faith Roessel, Chair, Indian Arts and Crafts Board).

(177.) Id.

(178.) Id. "The IACB and [the Interior Department's] Office of the Solicitor have met with the Department of Justice's Office of Tribal Justice, Environment and Natural Resources Division, Executive Office for U.S. Attorneys, and Consumer Litigation Section of the Civil Division to begin developing a memorandum of understanding on enforcement issues." Id.

(179.) Pub. L. No. 106-497, 114 Stat. 2219 (2000). These amendments, referred to earlier as the 2000 amendments, were explained in Part I.C.

(180.) "It's very difficult to tell the difference between the real and the fake." Shiffman, supra note 172 (citing statement of Andy Abeita, former president of the Indian Arts and Crafts Association, who is active in several trade associations and has trained federal customs inspectors how to detect fake Indian arts and crafts). Many national news outlets have published stories advising consumers how to detect fakes and what to look for in genuine goods. See, e.g., id.

(181.) See Dirk Johnson, supra note 29 (recounting story of Flagstaff, Ariz. jewelry retailer). The news story also tells of Indian-style pottery with packaging labels claiming that a "certificate of authenticity" was inside the item; when consumers looked, they found that the certificate read that the pottery had been "authentically made in Japan." Id.

(182.) James Brooke, Sales of Indian Crafts Rise and So Do Fakes, N.Y. TIMES, Aug. 2, 1997, at A6. At the Red Earth powwow in Oklahoma City, in July 1997, according to a Zuni jewelry maker and dealer, "there was one Santo Domingo Pueblo lady selling Philippine jewelry with her name scratched on the back.... Outside, a couple of Navajo families were selling Philippine jewelry as Indian jewelry." Id.

(183.) Id.

(184.) COOMBE, supra note 55, at 232.

(185.) Austin Sarat & Thomas R. Kearns, The Cultural Lives of Law, in LAW IN THE DOMAINS OF CULTURE, supra note 56, at 1.

(186.) Richard T. Ford, Race as Culture? Why Not?, 47 UCLA L. REV. 1803, 1813 (2000) (expressing skepticism about the advancement of cultural preservation rights).

(187.) Nor is it immediately obvious why a culture should be given any legal right to survive. Questions of this sort may be expected on the right, but progressives, too, have begun to critique the notion of cultural survival, in part concerned that appeals to "culture" reinforce racialism. Perhaps the best articulated critique comes from literary critic Walter Benn Michaels, who contends that arguments about a culture's survival can only make sense in tandem with appeals to race. Even if appeals to culture grow out of a desire to undo racism, Michaels argues that these appeals cannot escape the logic of racism:
   Our sense of culture is characteristically meant to displace race, but ...
   culture has turned out to be a way of continuing rather than repudiating
   racial thought. It is only the appeal to race that makes culture an object
   of affect and that gives notions like losing our culture, preserving it,
   stealing someone else's culture, restoring people's culture to them, and so
   on, their pathos. Our race identifies the culture to which we have a right,
   a right that may be violated or defended, repudiated or recovered. Race
   transforms people who learn to do what we do into the thieves of our
   culture and people who teach us to do what they do into the destroyers of
   our culture; it makes assimilation into a kind of betrayal and the refusal
   to assimilate into a form of heroism. Without race, losing our culture can
   mean no more than doing things differently from the way we now do them and
   preserving our culture can mean no more than doing things the same--the
   melodrama of assimilation disappears.


Walter Benn Michaels, Race into Culture: A Critical Genealogy of Cultural Identity, in IDENTITIES 32, 61-62 (Kwame Anthony Appiah & Henry Louis Gates, Jr. eds., 1995).

(188.) Part of the recent self-critical movement in anthropological scholarship aimed at understanding the role of anthropologists themselves in shaping the very "cultures" they study (and have studied), Clifford developed the "salvage paradigm" model to explain the practices employed by many traditional anthropologists. Clifford describes the efforts of turn-of-the-century, father-of-anthropology Franz Boas in "saving" an Indian culture that was on the verge of disappearance because of changing economic and social conditions. See James Clifford, Of Other Peoples: Beyond the Salvage Paradigm, in DISCUSSIONS IN CONTEMPORARY CULTURE 121 (Hal Foster ed., 1987).

(189.) Id. The point of Clifford's project is not to condemn those social scientists, but merely to recognize their role in "creating" tradition. (In fact, as others have pointed out, Boas' efforts now allow descendants of the indigenous people of the Northwest to rediscover elements of their ancestors' culture: "Boas's meticulous recording of ceremonies, myths, language, and art forms in the Pacific Northwest has left a rich legacy that Northwest Coast peoples actively mine today as they reinterpret or revive aspects of their cultures." Janet Catherine Berlo, Introduction: The Formative Years of Native American Art History, in THE EARLY YEARS OF NATIVE AMERICAN ART HISTORY: THE POLITICS OF SCHOLARSHIP AND COLLECTING 3 (Janet Catherine Berlo ed., 1992) [hereinafter NATIVE AMERICAN ART HISTORY].) In a similar vein, this section aims to present the complexity of the relationship between federal laws and programs and Native American cultural aesthetics, between the political economy of the law and the production of cultural forms. In a post-colonial, late capitalist, global postmodern world there are no easy indictments of "good guys" or "bad guys." In mediating and negotiating the (cultural) bounds of "authenticity" in such a world, a deep appreciation of history is needed.

(190.) Art critic Joseph Traugott suggests that four kinds of transformation take place when an object is assimilated into another culture: "Objects are transformed into commodities; modified for presentation; recontextualized to eliminate past history central to their original meaning; and interpreted in a conceptual framework based on outmoded concepts of `primitive peoples.'" Joseph Traugott, Native American Artists and the Postmodern Cultural Divide, 51 ART J. 36, 37 (1992) (citing Sally Price, Primitive Art in Civilized Places, 74 ART IN AMERICA 8, 9 (1986)).

(191.) "The development of Native American art in this century has been inextricably interwoven with the projects and patronage of various institutions, many of which operate, or have operated, under the auspices of state or federal government." W. Jackson Rushing, Critical Issues in Recent Native American Art, 51 ART J. 6, 7 (1992). See generally NATIVE AMERICAN ART HISTORY, supra note 189; see Aldona Jonaitis, Franz Boas, John Swanton, and the New Haida Sculpture at the American Museum of Natural History, in NATIVE AMERICAN ART HISTORY, supra note 189, at 27 ("Indeed, `traditional American Indian art' is an invented notion."); White, supra note 60, at 33 (discussing how much of Indian craft items were produced specifically for white tourists) ("Far from being `traditional,' then, much Indian artistic production is a part of the mixing of cultures and peoples.").

See also Richard Handler, Who Owns the Past? History, Cultural Property, and the Logic of Possessive Individualism, in THE POLITICS OF CULTURE 63-74 (Brett Williams ed., 1991). Handler argues that "cultures" are not (1) continuous over time, (2) homogeneous in composition, or (3) static in terms of traditions. Id. at 68. He argues that members are political agents who negotiate, invent and reimagine traditions in relation to the current realities. Id. For a collection of essays addressing the relationship between art and anthropology, see THE TRAFFIC IN CULTURE: REFIGURING ART AND ANTHROPOLOGY (George E. Marcus & Fred R. Myers eds., 1995). In particular, see Molly H. Mullin, The Patronage of Difference: Making Indian Art "Art, Not Ethnology", in id. at 166-200 (examining relationship between identity and art in the collection of Native American art in the early part of the twentieth century).

For recent critical scholarship on Native American culture, see generally GERALD VIZENOR, SHADOW DISTANCE: A GERALD VIZENOR READER (1994) [hereinafter SHADOW DISTANCE]; ARNOLD KRUPAT, ETHNOCRITICISM: ETHNOGRAPHY, HISTORY, LITERATURE (1992) (proposing an interdisciplinary "ethnocritical" approach to scholarship); NARRATIVE CHANCE: POSTMODERN DISCOURSE ON NATIVE AMERICAN INDIAN LITERATURES (Gerald Vizenor ed., 1989) (applying developments in postmodern scholarship to the study of Native American literature).

(192.) See note 125 supra.

(193.) For a detailed history of the early years of the IACB, see ROBERT FAY SCHRADER, THE INDIAN ARTS AND CRAFTS BOARD: AN ASPECT OF NEW DEAL INDIAN POLICY (1983). In addition to Schrader, on the 1941 MOMA exhibit, see FREDERIC H. DOUGLAS & RENE D'HARNONCOURT, INDIAN ART OF THE UNITED STATES (1941). See also MARVIN COHODAS, BASKET WEAVERS FOR THE CALIFORNIA CURIO TRADE: ELIZABETH AND LOUISE HICKOX (1997) (presenting an in-depth study of the production and marketing of baskets by two Native American basket makers in nineteenth-century California); W. Jackson Rushing, Marketing the Affinity of the Primitive and the Modern: Rene d'Harnoncourt and "Indian Art of the United States", in NATIVE AMERICAN ART HISTORY, supra note 189, at 191-236 (discussing the exhibition strategies of the 1941 Museum of Modern Art Exhibit).

(194.) In large measure, the Indian New Deal was a response to the 800-plus-page catalog of the dire conditions in Indian Country contained in the so-called Meriam Report published in 1928. See COHEN'S FEDERAL INDIAN LAW, supra note 12, at 144. The Meriam Report, commissioned by the Secretary of the Interior and officially entitled The Problem of Indian Administration, was a comprehensive survey of the social and economic status of Indians and "the first major report on the status of American Indians and the effectiveness of federal administration." INSTITUTE FOR GOVERNMENT RESEARCH, THE PROBLEM OF INDIAN ADMINISTRATION V (Johnson Reprint 1971) (1928) [hereinafter MERIAM REPORT]. The Meriam Report included several sections on arts and crafts production, and "[t]he survey staff [was] impressed by the possibilities of the development of native Indian art and its application as an enrichment to our industry." Id. at 125. The Meriam Report found that "[m]ost tribes of Indians give some attention to native crafts. In a few tribes such work is of considerable economic importance; in many others it is only an avocation, or a means of earning small sums of spending money; in a very few it has almost entirely disappeared." Id. at 531. The Meriam Report warned, however, that
   [t]he general tendency is for the native arts to disappear.... The
   reason[s] for this tendency ... are several.... [M]any of the young people
   look upon the work of their elders as old fashioned.... A more fundamental
   reason is the impact of modern life upon Indian society. Indians like
   whites prefer riding about in automobiles, if they have them, instead of
   sitting quietly at home and working.


Id. at 646-47. The Meriam Report observed that the federal government had done little to support arts and crafts production.
   Unfortunately native industries have, with some exceptions, received little
   encouragement from government officers and missionary workers. This neglect
   in some cases springs from contempt for all that constitutes distinctive
   Indian life. More generally, however, the failure to foster these arts
   seems to be due to a lack of understanding of their economic possibilities.


Id. at 533.

(195.) SCHRADER, supra note 193, at 134 (emphasis added). The Meriam Report had recommended a large role for the federal government in securing marketable goods and organizing a market for arts and crafts. "If these means to self support are to be preserved to the Indians, it seems necessary for the government to take a hand by furnishing sufficient aid to secure the production of marketable products and by developing a steady market for the output." MERIAM REPORT, supra note 194, at 533. Specifically, the Meriam Report recommended that:
   The quality of products should be standardized and their genuineness
   guaranteed. Articles should be: (1) Characteristically Indian, (2) of good
   materials, (3) of good workmanship, (4) of good color and design, (5)
   usable unless intended merely for display, (6) unique or original so far as
   compatible with the other requisites, (7) tagged with the government's
   guarantee of genuineness and quality, and (8) priced fairly. To achieve
   these things it would be necessary to exercise some supervision over the
   workers in their homes. Employees [of the government] should see that the
   workers avoid mistakes that would make articles unsalable and that they be
   enabled to secure the best materials to be had. It would be necessary also
   to stimulate originality of design, to encourage regularity of production,
   and to require as far as possible good working conditions in the homes,
   especially with respect to cleanliness and light. This work would of course
   be slow, and spectacular results could not be expected.


Id. at 651-52.

(196.) During congressional debate, one senator spoke of the many non-Indians (at that time, Anglos and Hispanics) in the Southwest who were making improper use of the public goodwill toward Indian products to market articles not correctly described. SCHRADER, supra note 193 at 109-10. But see NATHANIEL K. FAIRBANK, FED. EMERGENCY RELIEF ADMIN., HANDCRAFT: AN INVESTIGATION OF THE PRESENT AND POTENTIAL MARKET FOR NON-COMPETITIVE HANDCRAFT IN THE UNITED STATES 10 ("Indian craft is difficult to imitate by machine....").

(197.) REP. OF THE COMM. ON INDIAN ARTS & CRAFTS TO THE HON. HAROLD L. ICKES, SEC'Y OF THE INTERIOR, S. REP. 74-900 (1934) [hereinafter 1934 REP. ON INDIAN ARTS & CRAFTS].

(198.) A detailed analysis of this Report follows because no secondary source provides such an analysis.

(199.) 1934 REP. ON INDIAN ARTS & CRAFTS, supra note 197, at 2.

(200.) Id.

(201.) The dyad of concerns--consumer and producer--recurs fifty years later in the House Report accompanying a bill to amend the Federal Trade Commission Act to go after cheap, imported fakes. On the threat of imported imitation Native American arts and crafts: "[t]his is detrimental to both the unsuspecting consumer and to domestic producers." H.R. REP. No. 99-162, at 18 (1985). By this time, however, a third party in the industry also gives Congress some concern: "those who market authentic American Indian arts and crafts." Id. It was the lobbying efforts of this group that heavily influenced passage of the IACA. See generally Santa Fe Hearing, supra note 40. Interestingly, congressional debate about the IACA of 1990 focused more narrowly on Indian producers and a generalized notion of the protection of crafts as part of the American national heritage.

(202.) 1934 REP. ON INDIAN ARTS & CRAFTS, supra note 197, at 5.

(203.) Id. at 6 (emphasis added).

(204.) Id.

(205.) In arguing for an "adaptive" approach toward production, the Committee rejected an "extreme traditionalist point of view" which held that "the only Indian art is that which produces the kinds of articles made in the past, by the identical methods employed in the past." Id. at 10. The Meriam Report advocated this traditionalist approach and viewed adaptations as a degeneration of Native traditions. MERIAM REPORT, supra note 194, at 647. The Committee, however, believed that adaptation was necessary since, "[a] general basic [market] limitation is that the articles are not made primarily with an eye to existing American customs and usages." 1934 REP. ON INDIAN ARTS & CRAFTS, supra note 197, at 8. But this limitation did not exist in either the "fine art" or the souvenir markets. "The purely art value and the utility value of Indian products do enter, in some degree, into nearly every sale. But the souvenir value, the purpose to own or to give a memento of a visit to the Indian country, plus the facts that they are handcrafts, appear to be the determining elements in the great bulk of purchases." Id.

(206.) Id. at 10-11.

(207.) Id. at 11.

(208.) It is interesting to juxtapose the language used in this Report describing what makes Indian arts and crafts valuable with the language used in the 1990 Act. "[W]hat is vital and essential about Indian art is ... what the Indian has within himself...." Id. at 10. As Part II.D suggested, this essentializing impulse also motivates the definition of Indian in the IACA. The Meriam Report, too, employed essentializing language: "The Indians as a race, and particularly the Indian women, show a great fondness and aptitude for handicrafts." MERIAM REPORT, supra note 194, at 645.

(209.) According to Schrader, the initial efforts of the IACB were unsuccessful because the Board's leadership emphasized a "purist" approach, which emphasized adherence to rigid standards for Native artisans. SCHRADER, supra note 193, at 131-37. For example, the Board created standard for the blanket weaving and silver making trades. Id. at 133-36. (These standards are still on the books, codified at 25 C.F.R. [subsections] 301, 304, and 307 (2000).) These disastrous earliest efforts, however, were quickly replaced by the "visionary" leadership of Rene d'Harnoncourt. Under d'Harnoncourt, the IACB emphasized an adaptive and local approach, and flourished. He conducted field surveys and tailored marketing efforts to the specific needs of individual tribes. According to d'Harnoncourt, demand for Indian `arts and crafts could be categorized into four areas of demand: (1) producer's market (i.e., other Indians), (2) collectors' market, (3) souvenir market, and (4) useful, quality objects. It was this last segment that held the most lucrative promise for economic exploitation by Indians. Thus, his efforts were aimed at reviving (and retooling) the Indian arts and crafts industry to this market, encouraging adaptation in practices in order to market for this demand. See generally id. ch. 10.

As Schrader and others have pointed out, the 1939 San Francisco Golden Gate Exposition (celebrating the completion of the Golden Gate and the Bay Bridges) and the 1941 exhibit at the Museum of Modem Art in New York were instrumental in the creation of demand for these crafts and the revitalization of Indian artisanal production. "The San Francisco Exposition served as a nationwide advertising medium for Indian arts and crafts and contributed to the creation of a better understanding of and a wider market for Indian products, yet the board's effort cost the federal government relatively little. The Indian exhibit served as a powerful stimulus for Indian arts and crafts production and presented a testing ground for the commercial value of various products from different parts of the country. In the process, it proved to be a stimulus, also, for the creation of cooperative Indian enterprises for the production of handcrafts." Id. at 196.

(210.) 1934 REP. ON INDIAN ARTS & CRAFTS, supra note 198, at 5.

(211.) Rather than view postmodernism as a normative-free nihilism, this note takes a perspective that is closer to the political economic approaches of theorists such as social geographer David Harvey and literary and cultural critic Frederic Jameson. See, e.g., DAVID HARVEY, THE CONDITION OF POSTMODERNITY (1989); FREDERIC JAMESON, POSTMODERNISM, OR THE CULTURAL LOGIC OF LATE CAPITALISM (1991) (viewing postmodernism in historical context as reaction to the economic changes brought on by late twentieth-century capitalism). Following Jameson: "[To employ the term `postmodern'] seems to obligate you in advance to talk about cultural phenomena at least in business terms if not in those of political economy." Id. at xxi. Again, Jameson: "... [M]y own thoughts on `postmodernism' ... are therefore to be understood as an attempt to theorize the specific logic of the cultural production of that third stage [of capitalism], and not as yet another disembodied culture critique or diagnosis of the spirit of the age." Id. at 400. For Jameson, postmodernism is "what you have when the modernization process is complete and nature is gone for good." Id. at ix. "Culture" becomes a "second nature" and "a product in its own right." Id. at ix-x. Thus, "[p]ostmodernism is the consumption of sheer commodification as a process." Id. at x.

(212.) Jameson notes the very close, almost inseparable, connection between "culture" and "economics": "[1]t should be added that "culture," in the sense of what cleaves almost too close to the skin of the economic to stripped off and inspected in its own right, is itself a postmodern development..." Id. at xv.

(213.) Jameson illustrates this point through an examination of the movie genre of nostalgia film. "[T]he nostalgia film was never a matter of some old-fashioned `representation' of historical content, but instead approached the `past' through stylistic connotation, conveying `pastness' by the glossy qualities of the image, and `1930s-ness' or `1950s-ness' by the attributes of fashion.... "JAMESON, supra note 211, at 18-19. In much the same way, one could argue, that native arts & crafts are stylized representations of "Indian-ness," which draw upon a stylized, nostalgic sense of past Indian history. Jameson notes at least two other characteristics of postmodern culture: (1) the disappearance of the individual subject, id. at 15-16, and (2) a schizophrenic worldview, id. at 25.

(214.) Id. at 25 (internal citations omitted).

(215.) "Indeed, `traditional American Indian art' is an invented notion." Aldona Jonaitis, Franz Boas, John Swanton, and the New Haida Sculpture at the American Museum of Natural History, in NATIVE AMERICAN ART HISTORY, supra note 189, at 27.

(216.) of course, many consumers are serious, sophisticated buyers of Indian arts and crafts, who educate themselves, investigate sources, research histories and traditions, and make knowledgeable purchases, either as serious collectors or as more casual buyers. Other consumers may purchase craft products merely for aesthetic reasons.

(217.) A full account of consumer demand is similarly beyond the scope of this note.

(218.) See, e.g., Naomi Mezey, The Distribution of Wealth, Sovereignty, and Culture through Indian Gaming, 48 STAN. L. REV. 711 (1996) (analyzing three modes of cultural production). Of course, there are examples of Indians who have fabricated "traditions." See id. at 724-25 (discussing how gambling influenced the Pequot tribe "to reinvent a tribal identity")

(219.) "[I]f one wanted to make a single statement about Native Americans, it might be that they have sought to retain their cultures and communities despite colonial domination." Champagne, supra note 18, at 8.

(220.) Jameson notes the following features of this third phase of capitalism: new forms of business organization (such as multinational and transnational firms), international division of labor, "a vertiginous new dynamic in international banking and the stock exchanges ..., new forms of media interrelationship ..., computers and automation, the flight of production to Third World areas, along with all the more familiar social consequences, including the crisis of traditional labor, the emergence of yuppies, and gentrification on a now-global scale." JAMESON, supra note 211, at xix. Elsewhere Jameson describes this new stage of capitalism as "a purer and more homogeneous expression of classical capitalism." Id. at 405. And as the "most unfettered stage." Id. at 326. Also, Jameson describes "global restructuration of production and the introduction of radically new technologies--that have flung workers in archaic factories out of work, displaced new kinds of industry to unexpected parts of the world, and recruited work forces different from the traditional ones in a variety of features, from gender to skill and nationality." Id. at 319.

(221.) Littrell & Dickson provide an excellent discussion of the challenges indigenous groups face in producing and marketing goods for the global market. LITTRELL & DICKSON, supra note 29. Others provide more critical accounts. Basu, for example, describes a "cultural subversion of sorts" whereby "design and technical changes influenced by consuming publics" leads to "a genre of tourist or airport arts in which the symbolic content is reduced to conform to popular notions or stereotypes regarding minority groups--an ethnokitsch that is more a part of the worldview of dominant societies than that of the artisans themselves." Basu, supra note 26, at 259. Shift describes a kind of "ideological colonization."
   Collecting [Native American arts and crafts] becomes a form of
   colonization, an appropriation of the world of the other to make up a lack
   in one's own. This is colonization by metonymic exchange, the redemption of
   product (artwork) for process (conduct of life, system of values). As
   aggressive consumers, the colonizer-collectors control what is to be
   desired in the life process of the "native," for the collectors create the
   market for certain goods, inducing their production. The resultant industry
   both determines and symbolizes the conduct and perhaps even the values of
   the Indian producer (this commercial circuit might be seen as a case of
   ideological colonization). Commercial gain rewards the Indian producer for
   creating signs of a life deemed more valuable to the Euro-American
   consumer. The collectors return to the values of living in harmony with the
   land by purchasing products of those they think never left nature's estate.


Shift, supra note 53, at 74.

(222) "The fundamental ideological task of [postmodernism], however, must remain that of coordinating new forms of practice and social and mental habits ... with the new forms of economic production and organization thrown up by the modification of capitalism--the new global division of labor--in recent years." Id. at xiv. "Thus the new social movements and the newly emergent global proletariat both result from the prodigious expansion of capitalism in its third (or `multinational') stage." Id. at 319.

(223.) COHEN'S FEDERAL INDIAN LAW, supra note 12, at 20.

(224.) K. Anthony Appiah, Identity, Authenticity, Survival: Multicultural Societies and Social Reproduction, in MULTICULTURALISM: EXAMINING THE POLITICS OF RECOGNITION 149, 157 (Amy Gutmann ed., 1994) (arguing that cultural survival policies, such as those aimed at preserving French Canadian identity, do not respect the autonomy of future group members). To illuminate the ways in which appeals to cultural survival infringe upon the autonomy of individuals, it is useful to consider Appiah's essay, which responds to Charles Taylor's essay regarding cultural preservation issues in the Quebecois movement. Appiah's response focuses on the boundary between what a liberal, multicultural state can and cannot legitimately require of its citizens in the name of cultural survival. In Taylor's essay, the question of cultural survival revolves around whether the Quebecois state can require those who are "ethnically" francophone to teach their children the French language. Appiah's answer is no. Id. at 163. Thus, Appiah's insights may be helpful in understanding what, if anything, might be wrong with the IACA's assignment to tribes of the right to Native American cultural survival. For Appiah, the liberal state may legitimately acknowledge the existence and demands of collective identities by deciding not to apply liberal proceduralism uniformly. But two key questions must be resolved: Which voice speaks for a collective identity? And what obligation does the state have to individuals who might disagree with the particular notion of collective identity recognized by the state?

(225.) Id. at 154.

(226) Id.

(227.) Id. at 155.

(228.) For more on Native American identity, see ISSUES IN NATIVE AMERICAN CULTURAL IDENTITY (Michael K. Green ed., 1995); JOANE NAGEL, AMERICAN INDIAN ETHNIC RENEWAL: RED POWER AND THE RESURGENCE OF IDENTITY AND CULTURE (1996); RED POWER: THE AMERICAN INDIANS' FIGHT FOR FREEDOM (Alvin M. Josephy Jr., Joane Nagel & Troy Johnson eds., 2d ed. 1999).

(229.) This note can provide only the briefest survey of the development of the Indian tribe as a legal institution. Cohen's Federal Indian Law divides the history of federal Indian policy into six periods: Pre-Constitutional Precedents (1532-1789); The Formative Years (1789-1871); Allotments and Assimilation (1871-1928); Indian Reorganization (1928-1942); Termination (1943-1961); Self-Determination (1961-present). See generally COHEN'S FEDERAL INDIAN LAW, supra note 12, ch. 2. Deloria and Lytle follow a similar periodization: Discovery, Conquest, and Treaty-Making (1532-1828); Removal and Relocation (1828-1887); Allotment and Assimilation (1887-1928); Reorganization and Self-Government (1928-1945); Termination (1945-1961); Self-Determination (1961-present). VINE DELORIA, JR. & CLIFFORD M. LYTLE, AMERICAN INDIANS, AMERICAN JUSTICE 1-21 (1983).

(230.) Cherokee Nation v. Georgia, 30 U.S. 1 (1831); Worcester v. Georgia, 31 U.S. 515 (1832). Federal authority, including the power to determine that certain groups of Indians are recognized as an "Indian tribe," derives from the Indian Commerce Clause of the Constitution which expressly grants Congress the power "[t]o regulate Commerce ... with the Indian Tribes." U.S. CONST. art. I, [sections] 8, cl. 3. Incident to exercising such authority, Congress has implicitly "recognized" the existence of most Indian tribes through its dealings with tribes, by treaties, statutes, and ratified agreements. COHEN'S FEDERAL INDIAN LAW, supra note 12, at 3-4. Similarly, past executive branch actions that created reservations for some tribes had the same "recognition" effect. Id. at 4. Additionally, the Secretary of the Interior, pursuant to congressionally delegated authority, often decides that certain groups are "Indian tribes" (or certain individuals "Indians") for the purpose of various statutory programs. Id. Groups of Indians may petition for "recognition" by the federal government. The regulations governing the application for federal recognition as a tribal entity are codified at 25 C.F.R. [sections] 83. Since 1978, when the current regulations were adopted, Congress has recognized six new tribes and has restored one whose ties with the federal government previously had been terminated. SHEFFIELD, supra note 23, at 59. Today, the primary benefits of federal recognition are the right to limited self-government as a tribe and eligibility for an array of federal programs for tribes and individual members thereof. For a depiction of the efforts of two groups seeking federal recognition, see Ann Merline McCulloch & David E. Wilkins, "Constructing" Nations within States: The Quest for Federal Recognition by the Catawba and Lumbee Tribes, 19 AM. IND. Q. 361 (1995). Ten states have recognized tribal entities, under separate state guidelines. For a discussion of state recognition procedures, see SHEFFIELD, supra note 23, at 64-73.

(231.) Cherokee Nation v. Georgia, 30 U.S. at 17. "[T]ribes are under the protection of the federal government and in this condition lack sufficient sovereignty to claim political independence; tribes possess, however, sufficient powers of sovereignty to shield themselves from any intrusion by the states and it is the federal government's responsibility to ensure that this sovereignty is preserved." DELORIA & LYTLE, supra note 229, at 33.

(232.) "Most Indian tribes were independent, self-governing societies long before their contact with European nations, although the degree and kind of organization varied widely among them." COHEN'S FEDERAL INDIAN LAW, supra note 12, at 229. Deloria and Lytle point out that it is "difficult to generalize about traditional forms of tribal government because there was such a great variety of Indian social groupings," ranging from loose confederations of hunting groups (such as the Dakota) to theocracies (like the Hopi) to formal, Western-style organizations (like the Cheyenne). DELORIA & LYTEL, supra note 229, at 82.

(233.) Often such consolidated or confederated tribes consist of several distinct ethnological tribes, sometimes speaking different languages. Examples include the Wind River Tribes (comprised of the ethnologically distinct Shoshone and Arapahoe); the Cheyenne-Arapaho Tribes of Oklahoma; the Cherokee Nation of Oklahoma (comprised of the Cherokee, Delaware, Shawnees, and others); and the Confederated Salish and Kootenai Tribes of the Flathead Reservation. See COHEN'S FEDERAL INDIAN LAW, supra note 12, at 6. Another example is the Colorado River Indian Tribes (CRIT), created in 1865 and comprised of Indians from several tribes: Mojave, Chemehuevi, Navajo, and Hopi. See PRITZKER, supra note 27, at 58-60. Where no tribe existed, often a "chief" was appointed by the federal government so that treaties could be negotiated. See COHEN'S FEDERAL INDIAN LAW, supra note 12, at 6.

(234.) Examples of a single tribe divided into a number of legally separate tribes or "bands" include the Chippewa, the Sioux, and the Delaware which was divided into the Kansas Delawares and the Absentee Delaware. See COHEN'S FEDERAL INDIAN LAW, supra note 12, at 6.

(235.) During the 1950s and 1960s, under a policy that has come to be called "Termination," over one hundred tribes were "terminated" by specific legislation, that is, Congress revoked the special federal-tribal relationship thus ending federal support and supervision. Tribes that were terminated include two large ones (the Menominees of Wisconsin and the Klamath of Oregon, both whose status as a tribe has been "restored"), over 70 smaller ones, and 37-38 rancherios in California. Id. at 811. Some of these tribes have been restored but no compiled list exists. SHEFFIELD, supra note 23, at 62.

Commentators have identified eight consequences of termination policies on affected tribes: (1) "fundamental changes in land ownership patterns," (2) "trust relationship was ended," (3) state legislative jurisdiction was imposed, (4) state judicial authority was imposed, (5) exemption from state taxing power was ended, (6) special federal programs to tribes were discontinued, (7) special federal programs to individual Indians were discontinued, (8) tribal sovereignty was effectively ended. DELORIA & LYTLE, supra note 229, at 20; see also COHEN'S FEDERAL INDIAN LAW, supra note 12, at 17-19, 811-18.

While the special trust relationship ends with termination, a terminated tribe itself may continue to exist in an ethnological sense, and the Supreme Court has held that termination does not necessarily nullify certain treaty rights. Menominee Tribe v. United States, 391 U.S. 404, 413 (1968) (holding that treaty rights to fish and hunt were not abrogated by termination of federal trust relationship since the termination legislation did not contain an "explicit statement" abrogating those rights and such abrogation would not be "lightly imputed to Congress").

The standard historical view characterizes the termination policies of the 1950s and 1960s as regressive, a return to the war of conquest, after the relatively enlightened New Deal era. See DONALD L. FIXICO, TERMINATION AND RELOCATION: FEDERAL INDIAN POLICY, 1945-1960, at 183 (1986) ("Between 1945 and 1960 the government processed 109 cases of termination affecting 1,369,000 acres of Indian land and an estimated 12,000 Indians."). But recent revisionist history that examines the Native American response to, and role in, termination policies suggests that some Indian groups welcomed the opportunity to end colonial rule by the United States and to terminate their colonial status as American Indians.
   For some Alaskan Indians and for the Mescalero Apaches, Paiutes, and
   Blackfeet, termination seemed to offer an opportunity to fulfill promises
   of tribal self-rule under the 1934 Indian Reorganization Act (IRA). The
   Navajos, on the other hand, saw in termination a chance to jettison
   unpopular New Deal programs. Aspects of termination also appealed to
   pan-Indian groups in California and Oklahoma because it provided pathways
   to escape federal wardship.


KENNETH R. PHILP, TERMINATION REVISITED: AMERICAN INDIANS ON THE TRAIL TO SELF-DETERMINATION, 1933-1953, at xi (1999).

(236.) Paul Shukovsky, Tribes Fear New Policy Will Rob Them of Rights, SEATTLE POST-INTELLIGENCER, Apr. 4, 1994, at Al, available at 1994 WL 6120189 (citing Bureau of Indian Affairs memorandum).

(237.) Id. (citing statement of federal Indian law attorney Allogan Slagle). A 1994 controversy exposed an Interior Department policy that "distinguished between the powers possessed by an historic tribe [i.e., one that has existed from "time immemorial"] and those possessed by a community of adult Indians residing on a reservation, i.e., a non-historic tribe. [A historic] tribe has the full range of governmental powers.... In contrast, a community of adult Indians is composed simply of Indian people who reside together on trust land. A community of adult Indians may have only those powers which are incidental to its ownership of property...." Id. Of course, it was the exercise of federal power that created these so-called "non-historic tribes" in the first place.

(238.) Federal agencies are prohibited from taking any action "with respect to a federally recognized tribe that classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally recognized tribes by virtue of their status as Indian tribes." Technical Amendments: Indians, Pub. L. No. 103-263, [sections] 5, 108 Stat. 707, 708-09 (1994) (codified at 25 U.S.C. [sections] 476(f)-(g) (1994)). See also Paul Shukovsky, Clinton Reverses Policy Threatening Indian Rights, SEATTLE POST-INTELLIGENCER, June 7, 1994, at B1, available at 1994 WL 6142095.

(239.) In the way in which this federal power to recognize (and terminate) Indian tribes creates (or destroys) a legal entity, it is not unlike the "governmental technique" of jurisdiction that then-Justice Rehnquist defined in the voting rights case Holt Civic Club v. City of Tuscaloosa, 493 U.S. 60, 72 (1978) and that Rich Ford innovatively explores in a recent law review article. "The institution of jurisdiction does its most important work, not by repressing local difference, but by producing it, by dividing society into distinctive local units that are imposed on individuals and groups." Richard T. Ford, Law's Territory (A History of Jurisdiction), 97 MICH. L. REV. 843, 908 (1999).

(240.) The cornerstone of the Indian New Deal was the Indian Reorganization Act of 1934 (IRA), which laid the foundation for tribal self-determination and self-governance. "The opportunities made available to the tribes under this act were immense. While the act did not provide them with powers they had not previously possessed, it did recognize these powers as inherent in their status and resurrected them in a form which could be used as the discretion of the tribe." DELORIA & LYTLE, supra note 229, at 14.

(241.) Deloria and Lytle note two changes in the form and nature of tribal governments.
   First, whereas the traditional form of tribal organization functioned
   primarily as an adjudicatory body settling disputes within the tribes,
   today tribal bodies have become legislative in their outlook and
   bureaucratic in their operations. Policy-making and governmental
   administration constitute the sinews of their activities. Second, tribal
   governments have taken on the cloak of Anglo-American institutional forms.
   The structures, the functions, the technologies, the politics, and even the
   goals of the white community are in many ways displacing the traditional
   ways of the Indians.


Id. at 109.

(242.) Deloria & Lytle explain the bureaucratization of Indian tribes:
   The loosely knit organization that [in earlier times] performed largely
   quasi-judicial peacemaking tasks among tribal members has now taken on all
   the trappings of the Anglo-American form of local government. Structurally,
   many tribal governments are composed of representative councils that
   perform legislative functions, professional bureaucrats charged with
   managing the administrative business of the tribe, tribal courts that
   handle the adjudicatory matters of a criminal and civil nature, and even
   special business councils that conduct the economic development activities
   on behalf of the reservation.


Id., at 104.

(243.) Termination does not necessarily eliminate the existence of a tribe in an ethnological sense, but it may influence the ways in which a tribe conceives of itself and its members conceive of themselves, especially as more and more emphasis is placed on "tribalism," as is evidenced by the IACA's definitions.

(244.) The individual of Indian descent who does not meet his tribe's enrollment requirements, or like the Cherokee artist Bert Seabourn described in Part II, whose tribe refuses to certify him as an artisan, also fails to satisfy the IACA.

(245.) The late 1960s and 1970s brought social and economic legislation such as the Indian Civil Rights Act of 1968 (part of the omnibus civil rights legislation of that year); the Indian Education Act of 1972; and the Indian Self-Determination and Education Assistance Act of 1975, which permitted individual tribes, not the BIA or any other branch of the federal government, to decide whether "to plan, conduct, and administer programs" that the federal government sponsored. DELORIA & LYTLE, supra note 229, at 23. The early 1990s brought other social, economic, religious, and cultural legislation, including the IACA.

(246.) The 1934 IRA authorized the adoption tribe-by-tribe of a tribal constitution. "Although there were some variations, in general the new tribal constitutions and bylaws were standardized and largely followed the Anglo-American system of organizing people. Traditional Indians of almost every tribe strongly objected to this method of organizing and criticized the IRA as simply another means of imposing white institutions on the tribes." Id. at 15. Others are more caustic in their critique: "Although the IRA was imposed behind the democratic facade of reservation-by-reservation referenda, the record reveals that BIA field representatives obtained favorable results by presenting skewed or patently false information to voters in a number of instances, flatly rigging the outcomes in others." Churchill, supra note 14, at 52 (citing Rupert Custo, Federal Indian Policy, 1933-1945, in INDIAN SELF-RULE: FIRST-HAND ACCOUNTS OF INDIAN-WHITE RELATIONS FROM ROOSEVELT TO REAGAN (Kenneth R. Philp ed., 1986)).

(247.) Churchill, supra note 14, at 52.

(248.) See, e.g., GERALD VIZENOR, Unnamable Post Indians, in SHADOW DISTANCE, supra note 191, at 173-83, 174 ("[T]he cultures of tribal identities are elusive and inscrutable creations;" "[S]ome `traditions' are invented as evidence to support the texts of post-indian identities. Tradition and names, in this sense, serve the literature of dominance...."). It is impossible to do justice to Vizenor in so short a space. His difficult but provocative writing challenges the easy assumptions about contemporary native identity:
   [A]bout Indian identity I have a revolutionary fervor. The hardest part of
   it is I believe we're all invented as Indians.... The inventions have
   become disguises.... [W]e're invented from traditional static standards and
   we are stuck in coins and words like artifacts. So we take up a belief and
   settle with it, stuck, static. Some upsetting is necessary.... [T]o try to
   come up with a single idealistic definition of tradition in tribal culture
   is terminal. Cultures are not static, human behavior is not static. We are
   not what anthropologists say we are and we must not live up to a
   definition.


Id. at x (citations omitted).

(249.) "[A]ccording to the 1990 U.S. Census, over two-thirds of the country's Native Americans live in urban areas; only about 700,000 live on or near Indian reservations." Champagne, supra note 18, at 7.

(250.) See, e.g., As WE ARE NOW: MIXBLOOD ESSAYS ON RACE AND IDENTITY (William S. Penn ed., 1997).

(251.) Efforts to create and sustain a pan-Indian movement have historical roots. GREGORY EVANS DOWD, A SPIRITED RESISTANCE: THE NORTH AMERICAN INDIAN STRUGGLE FOR UNITY, 1745-1815 (1992); HAZEL W. HERTZBERG, THE SEARCH FOR AN AMERICAN INDIAN IDENTITY: MODERN PAN-INDIAN MOVEMENTS (1971).

(252.) Champagne, supra note 18, at 9.

(253.) Martha Minow reminds lawyers and judges of the "kaleidoscopic nature" of identity, beseeching them to "examine [1] the multiple contributions given to any definition of identity.... [2] the pattern of power relationships within which an identity is forged.... [and] a question of identity is framed." Martha Minow, Identities, 3 YALE J.L. & HUMAN. 97, 112 (1991). This overview also brings into question the belief of cultural pluralists and multiculturalists that "identity" is the "privileged object of social contest." MICHAELS, supra note 63, at 139. Michaels points to the way that a commitment to preconceived collective identities might limit an individual's ability to define himself by reference to "what he does," rather than "who he is."
   "[C]ultural pluralism" is an oxymoron; its commitment to culture is
   contradicted by its commitment to pluralism. For, on the one hand, the
   pluralist claim that our practices are justified only because they are
   better for us requires us to be able to say who we are independent of those
   practices and so requires us to produce our racial identity. But, on the
   other hand, the cultural claim denies the relevance of race and so leaves
   us unable to appeal to facts about who we are as justifications for what we
   do. Cultural pluralists are thus required to choose between culture and
   pluralism. And insofar as they choose pluralism they commit themselves to
   the primacy of identity; instead of who we are being constituted by what we
   do, what we do is justified by who we are. Cultural pluralism is thus
   committed in principle to identity essentialism, which is to say that in
   cultural pluralism, culture does not constitute identity, it reflects or,
   more precisely, expresses it.


Id. at 139-40. Michaels' provocative analysis points to the frustration of those who fall outside of the IACA's definition of "Indian" and those who resent any attempt by the state to classify by reference of what we can or cannot do because of who we are. At the very least, Michaels' analysis should give those on the ideological left some pause about, if not create outright skepticism in, any easy adherence to rigidly defined cultural identities.

For more on identity construction, see the collection of essays in IDENTITIES (Kwame Anthony Appiah & Henry Louis Gates, Jr. eds, 1995).

(254.) In her cautionary critique of identity-based legal advocacy, Janet Halley questions the validity of four "coherentist assumptions about identity politics." Janet E. Halley, Gay Rights and Identity Imitation: Issues in the Ethics of Representation, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 115, 116 (David Kairys ed., 1998).
   Identity politics is usually waged on assumptions that identity inheres in
   group members, that group membership brings with it a uniformly shared
   range (or even a core) of authentic experience and attitude, that the
   political and legal interests of the group are similarly coherent, and that
   group members are thus able to draw on their own experiences to discern
   those interests and to establish the authority they need to speak for the
   group.


Id. at 115-16.

(255.) Appiah, supra note 224, at 162-63.

(256.) Drawing on Appiah's insight and applying it in the context of gay rights advocacy, Janet Halley argues in a similar way that legal strategies for identity-based rights can run the risk of restricting the identity construction of individuals, and thereby can exert as coercive a force from below on group members as that which comes from above. Halley, supra note 254. Rich Ford outlines a similar "ideologically left critique of identity politics and multiculturalism." Ford, supra note 186, at 1803.

(257.) While it is not the purpose of this note to provide a complete survey of other federal Indian laws that aim to preserve tribal heritage, the Indian Child Welfare Act (ICWA) bears mention because it also may raise these autonomy concerns. The ICWA grants jurisdiction to Indian tribes in certain child custody proceedings. 25 U.S.C. [subsections] 1901-23 (1994). In these cases, the tribe can stake a claim in the child's welfare, raising the possibility that the tribe's interest can tromp that of the individuals--parent, child--involved. For an overview of the ICWA, see B.J. JONES, THE INDIAN CHILD WELFARE ACT HANDBOOK (1995).

(258.) Similarly, the Act's criminal provisions permit the state to prosecute these individuals.

(259.) For a sense of what specters such a trial might raise, see IAN F. HANEY LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996) (analyzing thirty-seven of the reported fifty-two racial prerequisite cases under U.S. citizenship laws from the late nineteenth and early twentieth centuries to show how arbitrary criteria, such as skin color and facial features, were used to construct race).

(260.) Santa Fe Hearing, supra note 40, at 13 (statement of Leo Calac, Vice Chairman, IACB).

(261.) See 25 U.S.C. [sections] 305e (1994).

(262.) To make out a prima facie false advertising case under the Lanham Act, a plaintiff must plead and prove that the defendant: (1) uses a false or misleading description or representation of fact; (2) in interstate commerce; (3) and in connection with goods or services; (4) in commercial advertising or promotion; (5) when the description or representation misrepresents the nature, qualities, or geographic origin of (a) the defendant's goods, services, or commercial activities, or (b) the goods, services, or commercial activities of another person; (6) and the plaintiff has been or is likely to be damaged by these acts. 15 U.S.C. [sections] 1125(a)(1)(B) (1994). See also 4 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION [sections] 27:24 (4th ed. 1997). There is no requirement that the plaintiff be a direct competitor of the alleged false advertiser. Although the language of [sections] 1125(a) read literally appears to give standing to aggrieved defrauded consumers, since it states that "any person who believes that he or she is or is likely to be damaged" may bring suit, the tour federal circuits that have examined the issue have held that consumers do not have standing to sue for false advertising under [sections] 1052(a). Colligan v. Activities Club of New York, Ltd., 442 F.2d 686 (2d Cir. 1971), cert. denied 404 U.S. 1004 (1971); Dovenmuehle v. Gilldorn Mortg. Midwest Corp., 871 F.2d 697 (7th Cir. 1989); Serbin v. Ziebart Int'l Corp., 11 F.3d 1163 (3d Cir. 1993); Barrus v. Sylvania, 55 F.3d 468 (9th Cir. 1995). See also Jean Wegman Burns, Confused Jurisprudence: False Advertising under the Lanham Act, 79 B.U. L. REV. 807 (1999).

Indian plaintiffs can also use the Lanham Act to combat the registration of trademarks that "consists of or comprises ... matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute." 15 U.S.C. [sections] 1052(a) (1994) (emphasis added). Under [sections] 1052(a), an Indian tribe could oppose the registration of a mark that falsely suggested a connection with the tribe or members thereof. In an opposition proceeding, the test for a false suggestion of a connection requires (1) that the mark in dispute be "unmistakably associated with the person or institution ... [and that it] point uniquely to the opposer" and (2) that the "connection with opposer would be presumed by purchasers of applicant's goods when they see the mark used on the goods." U.S. Navy v. United States Mfg. Co., 2 U.S.P.Q.2d 1254 (T.T.A.B. 1987). See also 3 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION [sections] 19:76 (4th ed. 1997).

(263.) See 18 U.S.C. [sections] 1159 (1994).

(264.) A 1996 lawsuit by the FTC under 15 U.S.C. [sections] 45(a)(1) against two businesses for allegedly selling fake Native American carvings resulted in a $40,000 settlement paid by the defendants. See Susan Byrnes, Two Firms Settle Over Phony Art, SEATTLE TIMES, Apr. 12, 1996, at B4, available at 1996 WL 3657795.

(265.) "[T]he strengthened trademark powers in this bill will certainly help Indian craftsmen and the board ..." Santa Fe Hearing, supra note 40, at 13 (statement of Leo Calac, Vice Chairman, IACB).

(266.) A certification mark
   is an unusual blend of mark which has been described as a `special
   creature' of trademark law. It performs a distinctly different function
   from that of a trademark, service mark, or collective mark. it is not used
   by the owner nor is it used to identify and distinguish the goods or
   services of any one party. Rather, it is used only on the goods and
   services of others and serves as a guarantee that those goods and services
   meet the standards set by the certification mark owner.


Terry E. Holtzman, Tips from the Trademark Examining Operation, 81 TRADEMARK REP. 180, 180 (1991). A certification mark is any word, name, symbol, or device used by a party or parties other than the owner of the mark to certify (1) regional or other origin, (2) material, mode of manufacture, quality, accuracy, or other characteristics of such person's goods or services, or (3) that the work or labor on the goods or services was performed by members of a union or other organization. 15 U.S.C. [sections] 1128 (1946). The categories are not mutually exclusive. For example, a mark can be used to indicate not only that the goods originate in a specific geographic area but also that they were produced in accordance with certain standards. The mark "Roquefort," for example, is used to indicate that cheese has been (1) manufactured from sheep's milk and (2) cured in the caves of the Community of Roquefort (France) in accordance with their long-established methods and processes. Id. at 181; see also Milo G. Coerper, Certification Marks as a Means of Protecting Wine Appellations in the United States, INTELL. PROP. L. NEWSL., Spring 1998, at 24.

(267.) See, e.g., DARRELL A. POSEY & GRAHAM DUTFIELD, BEYOND INTELLECTUAL PROPERTY: TOWARD TRADITIONAL RESOURCE RIGHTS FOR INDIGENOUS PEOPLES AND LOCAL COMMUNITIES 90-91 (1996). For a pessimistic view of the reception of appellations of origin in US. law, see Jim Chen, A Sober Second Look at Appellations of Origin: How the United States will Crash France's Wine and Cheese Party, 5 MINN. J. GLOBAL TRADE 29 (1996). In Australia, efforts are underway to implement a certification scheme to authenticate Aboriginal handcrafts. See id. For developments in Canada, see Valda Blundell, Aboriginal Empowerment and Souvenir Trade in Canada, 20 ANNALS OF TOURISM RES. 64 (1993), which discusses the Canadian government's response to protect aboriginal "cultural forms" through legislation, and the subsequent debates over who should control those forms.

(268.) INDIAN ARTS AND CRAFTS BOARD, U.S. DEP'T OF INTERIOR, FACT SHEET: TRADEMARK, CERTIFICATION, COPYRIGHT (1999). TO be eligible, the enterprise must: (1) have its own registered trademark, (2) offer for sale only "genuine Native American handcraft products," (3) be "entirely Native American owned and controlled," and (4) agree to apply the IACB certification mark only to products that meet the standards of quality agreed upon with the Indian Arts and Crafts Board at the time of application for certification. Id. This pamphlet does make clear how, exactly, "Native American" is defined. The federal regulations regarding the certificates use the term "Indian" and define "Indian-made genuine handicraft products" as "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." 25 C.F.R. [sections] 308.3(a). The IACB mark itself is a solid rectangle bearing the words "Certified Indian Enterprise, Genuine Handicrafts, Indian Arts and Crafts Board, U.S. Department of the Interior," and since it is intended to be used in conjunction with an existing trademark owned by the marketing enterprise, it also contains a space for that trademark to be inserted.

(269.) The chair of the IACB testified about these deficiencies at the May 2000 Senate Committee on Indian Affairs Oversight Hearing on Indian Arts and Crafts, and explicitly offered to provide statutory language to amend the IACA. Despite this testimony and offer, Congress did not clarify the trademark sections of the Act when it amended other sections of the IACA in October 2000. Oversight Hearing, supra note 117 (statement of Faith Roessel, Chair, Indian Arts and Crafts Board), available at 2000 WL 19304381.

(270.) 25 U.S.C. [sections] 305a(g)(1) (1994).

(271.) 25 U.S.C. [sections] 305a(g)(3) (1994).

(272.) 25 U.S.C. [sections] 305a(g)(3) (1994).

(273.) "The owner of a trademark used in commerce may apply to register his or her trademark under this Act...." 15 U.S.C. [sections] 1051(a) (1994); see also 3 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION [sections] 19:53 (4th ed. 1997).

(274.) 15 U.S.C. [sections] 1051 (1994); see also TMEP [sections] 802.01.

(275.) 15 U.S.C. [sections] 1051 (1994); see also TMEP [sections] 1201.02(b).

(276.) In devising the trademark registration program, the IACB may well decide to use the Act's definitions of "Indian," "Indian tribe," and "Indian arts and crafts organization." Such a decision would be consistent with many other federal Indian programs that require tribal affiliation in order to receive federal government benefits. Individuals of Indian descent who fail to meet these definitions, like any other person, would still be free to register marks on their own, without the assistance of the IACB. At the same time, existing federal law under the Lanham Act (noted in note 92 supra) permits an Indian tribe to oppose the registration of disparaging marks.

(277.) The Council for Indigenous Arts and Culture (CIAC), a non-profit cultural preservation organization, is assisting several tribes, including the Navajo, the Zuni, and the Hopi, in developing a trademark certification program, with Navajo and Zuni projects "at an advanced stage." Oversight Hearing, supra note 117 (statement of Andy P. Abeita, representing CIAC), available at 2000 WL 19304213.

(278.) Leslie Linthicum, Fakes Tarnish Indian Crafts, ALBUQUERQUE J., June 15, 1997, at B1, available at 1997 WL 18387253.

(279.) Duane A. Beyal, Tourism Office Hosts Unique Forum to Examine Arts and Crafts Issues, NAVAJO TIMES, May 14, 1998, at A2, available at 1998 WL 12701568.

(280.) The Indian Arts and Crafts Association, the largest trade association of its kind, is assisting tribes in developing tribal trademarks. See Oversight Hearing, supra note 117 (statement of Tony Eriacho, Jr., representing the Indian Arts and Crafts Association), available at 2000 WL 19304229.

(281.) See, e.g., Jolene Rickard, Native Networks: Atlatl Biennial Conference, AFTERIMAGE, Jan. 1, 1999, available at 1999 WL 12741580 (reporting on the trademark panel at the visionary arts conference held in San Francisco in October 1998).

(282.) See, e.g., Robert Jackson, Indian Art Getting Hot Overseas: Arts, Crafts, Clothes, Entertainment Attract Fans in Europe, Asia, ROCKY MTN. NEWS, Aug. 27, 1995, at 38A, available at 1995 WL 3209460; David Madrid, Fostering Native Art: The National Native American Co-operative, based in Tucson, Represents 410 Tribes to Promote Indian Arts and Crafts Around the World, TUCSON CITIZEN, Dec. 25, 1995, at 7, available at 1995 WL 11944104. See also Santa Fe Hearing, supra note 40, at 4.

(283.) See, e.g., COOMBE, supra note 55, at 245 ("It is difficult for Native peoples to even speak about `rights' to cultural practices or creative skills that are passed between individuals generationally....") Coombe contends that "[i]n discussions of cultural appropriation, First Nations peoples strive to assert that the relationships that stories, images, motifs, and designs have to their communities cannot be subsumed under traditional European categories of art and culture and the possessive individualism that informs them." Id. Coombe argues that "[s]implistic reduction of Native concerns to trademark or copyright considerations and the assertion of intellectual property rights fail to reflect the full dimensions of Native aspirations and impose colonial juridical categories on postcolonial struggles in a fashion that reenacts the cultural violence of colonization." Perhaps, but the support for and embrace of the IACA by many Native Americans represents a decision to seek a legal solution. In fact, Coombe later admits that "[p]eoples of First Nations ancestry may well be compelled to articulate their claims `in a language that power understands.'" Id. at 242. Coombe suggests, though, that such an articulation is a "double voiced rhetoric" that simultaneously "engag[es] and subvert[s]" Western notions. Id. That too may well be so, see generally SHADOW DISTANCE, supra note 191, but the challenge when such rhetorical techniques are codified into law is to structure a legal regime that will respect the autonomy of individuals and not create a "double edged sword." This note argues that, in current form, the IACA fails this challenge because it does not consider Indian arts and crafts "in context," to borrow from Coombe's analysis. Id. at 229.

(284.) Others have pointed out the effects of the increasing tendency to propertize speech on identity construction. See Madhavi Sunder, Authorship and Autonomy as Rites of Exclusion: The Intellectual Propertization of Free Speech in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 49 STAN. L. REV. 143, 161 (1996) ("Scholars have already explored some of the problems arising from tailoring one's identity to preconceived notions of authenticity to secure the legal prize of property rights in that identity.") (citing JAMES CLIFFORD, THE PREDICAMENT OF CULTURE 277-346 (1988)).

(285.) A similar analysis holds for an Indian arts and crafts organization (such as a tribally affiliated craft cooperative) and its members.

(286.) See Holtzman, supra note 266, at 186.

(287.) Interest in using existing intellectual property regimes for cultural preservation purposes has been increasing. For instance, the calls for ending the use of Native American names as trademarks for sports teams gained momentum with the decision by the U.S. Patent and Trademark Office to cancel the registration of the REDSKINS mark held by the NFL football team of the same name. See Jeffrey Lefstin, Does the First Amendment Bar Cancellation of REDSKINS?, 52 STAN. L. REV. 665 (2000). The U.S. Patent and Trademark Office issued a report in November 1999 that recommends the registration by Indian tribes of their official insignia and the creation of a national database of these insignia to aid the Trademark Office in its evaluation of marks that may disparage or falsely suggest connections to Indian tribes. Q. TODD DICKINSON, U.S. PATENT & TRADEMARK OFFICE, OFFICIAL INSIGNIA OF NATIVE AMERICAN TRIBES: REPORT PURSUANT TO P.L. 105-330 (Nov. 24. 1999); see also Dugie Standeford & John T. Aquino, PTO Finally Issues Native American Tribal Insignia Trademark Report, 6 INTELL. PROP. STRATEGIST 5 (2000).

(288.) Anderson, supra note 21, at 18. See also Jack Anderson, Colorado Senator Wiggles Around Bill He Wrote Himself, PRESS J. (Vero Beach, Fla.), June 22, 1998, at A8, available at LEXIS, The Press Journal File; Peter Blake, Editorial, Ben's New Knife: A Tool for 19987, DENVER ROCKY MTN. NEWS, Apr. 9, 1997, at 39A, available at LEXIS, US News, Combined File; Steve Jackson, Sticking Point: Step Right Up and Get Your Gen-u-wine Ben Nighthorse Knife!, DENVER WESTWORD, Feb. 27, 1997, available at LEXIS, US News, Combined File. From 1992 to 1995, Campbell's jewelry business sold almost a million dollars' worth of merchandise. Jennifer Bradley, Inside "Nighthorse, Inc." Jewelry: Senator's Lucrative Business Causes Disclosure Headaches, ROLL CALL, Jul. 8, 1996, available at LEXIS, US News, Combined File; Adriel Bettelheim, A Wealth of Information: Colo. Delegation Details Finances, DENVER POST, June 15, 1995, at B-01, available at LEXIS, US News, Combined File. The Franklin Mint's on-line catalog lists as "Authentic Native American Art" four collectible knives "By famed Cheyenne Artist Ben Nighthorse[R]" in its "Spirit of the Southwest" collection. Franklin Mint, http://www.franklinmint.com/ tfmweb/shopping/product.asp?super_theme_id=014&sub_theme_id=039&prod_id =8149&f m_cntry_cd=11&c_code-USD&tfmGUID-2EBA9087FA1B11D4BCC70090274066E1&or sr_url_addr=00594545410B1E1E4646461F5743505F5A5D585F5C585F451F525E5C1E45 575F&nav=0 (last visited Feb. 2, 2000). A link at the entry for each knife allows purchasers to "learn more about the artist" and features a full-color photo of Campbell in war bonnet.

Adding fuel to the fire, the knives are marketed in conjunction with the controversial American Indian Heritage Foundation. Headed by Princess Pale Moon, who calls herself "America's Contemporary Pocahontas" and whose own Native American heritage has been questioned by many critics, the foundation's activities have generated controversy for the last two decades. See Barbara Carton, Va. Probes Indian Group's Records: States Struggling to Regulate Charities, WASH. POST, Aug. 2, 1987, at B1, available at LEXIS, US News, Combined File; Robert F. Howe, American Indian Charity Files Bankruptcy Petition: 3 States Bar Foundation from Soliciting, WASH. POST, Jan. 31, 1990, at B3, available at LEXIS, US News, Combined File; Mike Sager, Pale Moon at the Edge of the Spotlight: America's Contemporary Pocahontas' Working the Crowd for Indians' Cause, WASH. POST, May 2, 1982, at H1, available at LEXIS, US News, Combined File; Leonard Shapiro, Princess Pale Moon Draws Special Note: AIM "Totally Opposed" to her Anthem Role, WASH. POST, Nov. 3, 1991, at D9, available at LEXIS, US News, Combined File; Kathleen C. Thomas, Charities Explain Why They Got "Cut," RICHMOND TIMES DISPATCH, Dec. 21, 1997, at E1, available at LEXIS, US News, Combined File; Adam Zagorin, Remember the Greedy, TIME, Aug. 16, 1993, at 36, available at 1993 WL 2930092.

(289.) Anderson, supra note 21.

(290.) In a separate news story about the IACA, Campbell has expressed disdain for Indians who "buy beads at discount stores, string them into necklaces and sell them as `Indian made.' "I've seen Indians out there prostituting their culture." A 1990 Federal Law Has Never Been Used to Catch Counterfeiters, USA TODAY, Apr. 8, 1998, at 2A, available at LEXIS, US News, Combined File.

(291.) See Julie Cart, Kachina-Doll Feud Divides Two Tribes: Expensive Souvenirs Represent Hopi Deities. Navajo Reproductions Cost Far Less, L.A. TIMES, Aug. 25, 1998, at A5, available at LEXIS, Los Angeles Times File; Mark Shaffer & Bill Donovan, Manufacturing of Fake Kachina Offend Hopi, NEWS FROM INDIAN COUNTRY, Feb. 1994, at 6. This craft battle is just the latest between the two nations. See DAVID M. BRUGGE, THE NAVAJO-HOPI LAND DISPUTE: AN AMERICAN TRAGEDY (1994) (chronicling the "history of an ambiguous relationship" between the two peoples).

(292.) Cart, supra note 291, at A5.

(293.) Contra Guest, supra note 56, at 137-38 (arguing that the Hopi might have an IACA claim).

(294.) Bob Nizza, Indian Style Jewelry, at http://www.buckagram.com (last visited Sept. 2, 2000). Nizza has created quite a stir, since he sells admittedly fake goods. Moreover, his website suggests that most of the market for "authentic" goods is, in fact, made up of fakes.

(295.) In October 2000, the FTC and the IACB teamed up for an awareness-raising event called the "American Indian Arts and Crafts `Surf Day.'" The two agencies identified 425 websites that purport to sell authentic Indian arts and crafts and notified each of the provisions of the Act. Fed. Trade Comm., News Release, American Indian Arts and Crafts "Surf Day" (Oct. 24, 2000), available at 2000 WL 1578559 (F.T.C.). An Internet search for "Indian arts and crafts" conducted in January 2001 using the Google.com search engine returned a result of over 100,000 websites.

(296.) "The interest in American Indians is very high both in Europe and in the Far East. Markets for Indian arts and crafts are growing in both areas. Indian clubs have begun in many European cities. A multi-million dollar Native American exhibit and market is being planned approximately 45 miles from Paris." White House Conference on Tourism: Joint Hearing Before the House Subcomm. on Aviation and the Subcomm. on Surface Transp., Comm. on Pub. Works and Transp., 103d Cong. 66 (August 4, 1993), available at 1993 WL 760469 (F.D.C.H.) (testimony of Allan E. Harder, Director, Economic and Business Development Office, Cherokee Nation). See also U.S. & FOREIGN COM. SERV. TRADE OPPORTUNITY PROGRAM: DIRECT SALE FOR RESALE (1997), available at 1997 WL 15145284 (requesting authentic "Native Indian jewelry; Native Indian engravings, prints and lithographs"). There is also a growing awareness of fakes, as evidenced by foreign press reports about the Act. See, e.g., Tilman Streif, Tourists Often Misled on Indian Crafts--Market Flooded with Fakes, DEUTSCHE PRESSE-AGENTUR, Aug. 27, 1998, available at Westlaw ARTNEWS database, 8/27/98 DCHPA 20:06:00) (reporting in German press of tourists being misled by fake Indian crafts).

(297.) "Karl-May-Spiele Bad Segeberg" is a theme park named for the nineteenth-century German novelist who wrote about the American West. See http://www.karl-mayspiele.de (last visited Sept. 9, 2000); Gordon Bronitsky, Indians Find Doors Open Across Pond, DENVER BUS. J., Oct. 17, 1997, at 46A ("In the summertime ... hundreds of Germans assemble tepees by the river and pretend to be Indians.").

William J. Hapiuk, Jr., Law Clerk to the Hon. John T. Noonan, Jr., U.S. Court of Appeals for the Ninth Circuit, 2000-01 term; Senior Articles Editor, Stanford Law Review, vol. 52; J.D., Stanford Law School, 2000; M.A. (History), The Johns Hopkins University, 1995; B.A., Tulane University, 1991. The author thanks Professor Tom Grey and the members of the Fall 1998 Legal Studies Colloquium at Stanford for support in the initial development of this note; Professors Rich Ford and Janet Halley for encouraging the project; the editors of volumes 52 and 53 of the Stanford Law Review, particularly Derek Shaffer and Rob Hur, for their careful edits and for their patience; the staff members of the Indian Arts and Crafts Board in Washington, D.C., for cheerfully providing documents; Georgette Hogan for lively and edifying discussions of Native American crafts; Michael Garral for critical comments on an earlier draft; and Jim Mokhiber for sharing scholarly insights, without which this note could not have been written, and, especially, for his friendship. [C] 2001 by William J. Hapiuk, Jr., and the Board of Trustees of the Leland Stanford Junior University.
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