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Indian Arts and Crafts Act of 1990
Public Law 101-644
Federal Register: October 21, 1996 (Volume 61, Number 204)
Rules and Regulations
DEPARTMENT OF THE INTERIOR
Indian Arts and Crafts Board
25 CFR Part 309
Protection for Products of Indian Art and Craftsmanship
AGENCY: Indian Arts and Crafts Board (IACB), DOI.
ACTION: Final rule.
SUMMARY: This rule adopts regulations to carry out Public Law 101-644, the Indian Arts and Crafts Act of 1990. The regulations define the nature and Indian origin of products that the law covers and specify procedures for carrying out the law. The trademark provisions of the Act are not included in this rulemaking and will be treated at a later time.
EFFECTIVE DATES: November 20, 1996.
FOR FURTHER INFORMATION CONTACT:
Meridith Z. Stanton or Geoffrey E. Stamm, Indian Arts and Crafts Board, Room 4004-MIB, U.S. Department of the Interior, 1849 C Street, NW., Washington, DC 20240, telephone 202-208-3773 (not a toll-free call).
The Act of August 27, 1935 (49 Stat. 891; 25 U.S.C. 305 et seq.; 18 U.S.C. 1158-59), created the Indian Arts and Crafts Board. The Board is responsible for promoting the development of American Indian and Alaska Native arts and crafts, improving the economic status of members of Federally-recognized tribes, and helping to develop and expand marketing opportunities for arts and crafts produced by American Indians and Alaska Natives.
The 1935 Act adopted criminal penalties for selling goods with misrepresentations that they were Indian produced. This provision, currently located in section 1159 of title 18, United States Code, set fines not to exceed $500 or imprisonment not to exceed six months, or both. Although this law was in effect for many years, it provided no meaningful deterrent to those who misrepresent imitation arts and crafts as Indian produced. In addition, it required ``willful'' intent to prove a violation, and very little enforcement took place.
In response to growing sales in the billion dollar U.S. Indian arts and crafts market of products misrepresented or erroneously represented as produced by Indians, the Congress passed the Indian Arts and Crafts Act of 1990. This Act is essentially a truth-in-advertising law designed to prevent marketing products as ``Indian made'' when the products are not, in fact, made by Indians as defined by the Act.
The Indian Arts and Crafts Board published the proposed rulemaking for the Indian Arts and Crafts Act of 1990 on October 13, 1994. 59 FR 51908-51911. As the Federal Register omitted several key lines from the Enforcement section 309.3, the Federal Register published a correction on October 18, 1994. 59 FR 52588.
In addition to publication, several thousand copies of the proposed rulemaking were distributed to interested parties, including every Federally-recognized Indian tribe.
The Board received 36 public comments on the proposed rulemaking, and each was carefully reviewed, analyzed, and considered. These comments are grouped by issues and Board responses in the following summary.
Summary and Analysis of Public Comments
A broad range of respondents expressed their support of the proposed regulations. These comments emphasized the crucial contribution of art and craft work production and sales to the economic development of Indian individuals and tribes throughout the nation.
Several comments raised the issue of what is a reasonable boundary between marketing statements that are simply truthful and statements that are clearly misleading. One respondent expressed concern that the Act and proposed regulations prohibit an artist who is not a member of an Indian tribe from truthfully describing his or her Indian heritage as part of the discussion of his or her art work. The regulations do not prohibit any statements about a person's Indian heritage that are truthful and not misleading in the marketing of that individual's work.
One comment asked whether an individual, who is neither enrolled nor certified as an Indian artisan, is permitted under the Act to use the term ``Non-Government Enrolled Descendant'' or its abbreviation, ``NGED,'' in conjunction with the name of an Indian tribe to market his or her work. Considered as a whole, this phrase and its abbreviation are misleading. The capitalization implies some sort of official standing, and the word ``enrolled'' is positive. However, the truth is exactly the opposite: the individual is not officially recognized by, and is not enrolled in, the tribe named.
One comment questioned the treatment of persons of various degrees of Indian ancestry who are active in the art market, but are not members of tribes. As described in section 309.3 of the Section-by- Section Comments, Congress in the Act addressed this situation by leaving it to the tribes to decide whether to certify as Indian artisans for purposes of the Act individuals who have some degree of ancestry of that tribe but are not tribal members. This tribal certification method also is discussed in section 309.4 of the regulations. A person is permitted under the regulations to make a truthful statement, in connection with marketing of an art or craft product, that he or she is of Indian ``descent'' or particular tribal ``descent''.
Several respondents questioned the absence of regulations implementing the Act's trademark provisions and recommended that a supplementary rule be proposed for comment, to carry out the trademark section, before final publication of the regulations. This recommendation has not been adopted. The Indian Arts and Crafts Board is not prepared to carry out the trademark section of the Act at this time. Although the trademark provisions may be desirable in their own right, they are not necessary to the protections covered by these regulations. As stated previously, the trademark provisions of the Act will be treated at a later time.
One comment recommended and advocated changes in both the proposed regulations and the Act on the grounds that they are unconstitutional. Another comment asked for a repeal of the Act and proposed regulations, as they are a violation of the freedom of speech of all ``Indian Americans.'' These comments have not been adopted either. While regulations can interpret and clarify the Act, regulations cannot change the Act. Furthermore, the regulations do not prohibit any individual, marketing enterprise, or other vendor from truthfully representing the art or craft products that they offer or display for sale or sell. The regulations define the nature and Indian origin of products protected by the Indian Arts and Crafts Act of 1990, a truth- in marketing law, from false representations. They also specify how the Indian Arts and Crafts Board will interpret certain conduct for enforcement purposes.
Finally, several comments recommended that the regulations be reissued in proposed form for further comment before final publication of the regulations to carry out the Act. A broad range of comments was received and carefully considered. Appropriate revisions and refinements have been adopted without fundamental change to the approach of the proposed regulations. Accordingly reissuance in proposed form is not warranted.
Section 309.1 How Do These Regulations Carry Out the Indian Arts and Crafts Act of 1990?
One response asked how the legislation affects arts and crafts sold in business establishments. Another stated that the ``middle man'' should be held accountable for how the product is marketed.
Section 309.1 of the regulations covers these concerns. It states that the Act regulates products offered or displayed for sale, or sold as Indian produced, an Indian product, or the product of a particular Indian, or Indian tribe, or Indian arts and crafts organization within the United States. This section does not limit the marketing vehicles covered by the regulations. The Act applies to any offer for sale or display for sale, or actual sale by any person in the United States. In light of this broad application, section 309.1 is appropriately drafted.
Section 309.2 What Are the Key Definitions for Purposes of the Act?
Definition of Indian, Section 309.2(a)
One respondent asked that the regulations specifically name Native Hawaiians to protect them under the Act. Another wanted individuals who have Certificates of Indian Blood, yet are neither on tribal rolls nor certified as Indian artisans, to be included under the definition of Indian.
The final regulations do not adopt these suggestions. The Act specifically defines who is an Indian protected by the Act. The regulations can interpret and clarify the Act but cannot change the statutory terms of the Act.
One respondent expressed concern about state incorporated non- profit ``Indian'' organizations and their members who are not enrolled with state or Federally-recognized tribes, yet present themselves as Indian at crafts shows. In addition, adoption was an issue for two respondents. One expressed concern that non-Indians, ``adopted by Indian spiritual leaders,'' may be permitted to sell their work as Indian. Another stated that ``not until the seventh generation'' should an adopted tribal member or family have the right to offer their handcrafts for sale as Indian.
The definition of Indian already satisfies these concerns. State incorporated non-profit ``Indian'' organizations do not meet the definition of Indian tribe under the Act and in section 309.2(e)(1) and (2) of the regulations. Membership in a non-profit ``Indian'' organization does not meet the definition of Indian under the Act and in section 309.2 of the regulations. Furthermore, if an ``Indian spiritual leader'' or tribal member adopts an individual, this action does not mean that the adopted individual is a member of a state or Federally-recognized tribe or is certified as an Indian artisan by a state or Federally-recognized tribe.
Definition of Indian Artisan, Section 309.2(b)
Several respondents suggested that the definition of Indian artisan should be clarified to read ``an individual who is certified by an Indian tribe as its non-member artisan.'' This clarification has been adopted with a minor modification.
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