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Wicazo Sa Review 18.1 (2003) 25-79



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Indian™ U.S.A.

Joanne Barker


The Indian Arts and Crafts Act of 1990 (IACA) was immediately a part of ongoing legal contestations in the United States about American Indian and Alaskan Native 1 governance, the politics of indigenous identification, and histories of cultural appropriation and expropriation. Representatives Jon Kyl (R.-Ariz.) and Ben Nighthorse Campbell (D.-Colo.) 2 submitted the IACA in 1989, based on a 1935 act of the same name (Collier 1934; Schrader 1983), and after extensive revisions it was signed into law by President George H. W. Bush (Parsley 1993). The IACA was foremost a response to the growing competitiveness of the Indian "arts and crafts" 3 market within the United States, estimated to be worth close to $1 billion annually, and to ineffectual laws in regulating imports and appropriations said to undercut indigenous revenue guaranteed by the earlier statute (Parsley 1993, 489; Lund 1976, 1-6; Wallis 1993, 29).

The IACA's stated purpose is to protect American Indian and Alaskan Native artists and their patrons from the fraud and misrepresentation of imports and domestic appropriations. Accordingly, it extends the authority of the Indian Arts and Crafts Board, created under the 1935 act, "to promote the development of Indian arts and crafts, for improving the economic status of Native Americans," and provides that

It is unlawful to offer or display for sale or sell any good, with or without a Government trademark, in a manner [End Page 25] that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe ortribal organization, resident within the United States. (Public Law 101-644, secs. 103, 104)

The IACA requires that anyone who wants to display or sell their workas Indian-made must show the government-issued trademark, to be developed and distributed by the Board, in order to guarantee the authenticity and quality of the product (PL 101-644, sec. 102; Guest 1997, 135). Those defined as Indian by the statute, and accordingly qualified to receive the trademark, are enrolled members of federally recognized tribes. All members of unrecognized tribes are excluded, as well as those who fail to meet enrollment criteria, those who are unable to enroll (such as those who do not have proper documentation), those who are unable to gain "special artisan status," and those who refuse to enroll for political or other reasons. 4

Penalties for violating the IACA's provisions are steep: $250,000 and five years in prison for the first offense by an individual and $1 million for the first offense by other than an individual. For subsequent violations, the fine is $1 million for an individual and $5 million for other than an individual. In November 2000, the Indian Arts and Crafts Enforcement Act was passed to extend the scope of penalties to include all gross profits accrued by defendants as well as to direct the Board to provide examples of products that may fall under the IACA's provisions (PL 106-497, sec. 1[A] amended). The IACA also includes civil penalties in the form of treble damages and attorneys' fees to be paid to a prevailing plaintiff, and assigns the task of investigating alleged violations to the Federal Bureau of Investigation (PL 101-644, sec. 104; Mikkanen 1991, 525).

In this essay, I analyze the definitions put forth by the IACA for determining who is an Indian, what is an Indian tribe, and what counts as an Indian product. I have selected the IACA and its definitions as a case study for understanding the cultural politics of identification, politics that emerge from and function to define the epistemological foundations of sovereignty for indigenous peoples. These politics are coded through the IACA's provisions for Indian membership, nationhood, and trade as represented by the very public assertions—by many indigenous government officials, lobbyists, artists, and art associations involved in the act's development and passage—that these provisions were a true affirmation of indigenous rights to sovereignty. As part of ongoing efforts by indigenous peoples in...

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