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Indian artists dealt setback by federal appeals court
Thursday, March 3, 2005

A federal appeals court on Wednesday expressed amazement at the lack of enforcement of the Indian Arts and Crafts Act but refused to reinstate a lawsuit against a company that passes off non-Indian goods as tribal products.

In a unanimous decision, the 7th Circuit Court of Appeal agreed that the federal judge handling the case made mistakes at the trial level. Among other findings, the judge said that federal regulations aimed at protecting Indian art are unconstitutional.

On appeal, Native American Arts Inc., a coalition of artists from the Ho-Chunk Nation of Wisconsin, argued that the errors affected the jury's verdict in favor of The Waldron Company, a South Dakota-based company that markets its goods with labels like "Navajo" and "Crow." The products are, in fact, made by Trisha Waldron, a non-Indian.

The artists said that such labeling violates the "truth in advertising" intent of the Indian Arts and Crafts Act. But the appeals court concluded that non-Indians can sell their goods with "Indian" terms so long as customers know the items weren't produced by actual Indians.

"A non-Indian maker of jewelry designed to look like jewelry made by Indians is free to advertise the similarity but if he uses the word 'Indian' he must qualify the usage so that consumers aren’t confused and think they’re buying not only the kind of jewelry that Indians make, but jewelry that Indians in fact made," Judge Richard A. Posner wrote the majority.

The decision faults Congress for not giving enough authority to the Indian Arts and Crafts Board, an entity of the Interior Department, to "determine what constitutes sufficient proof of false advertising." This shortfall allows the jury to rule for Waldron because she qualifies her work as made by a non-Indian, the court said.

Forgery, fraud and misrepresentation has been a long-standing issue in the $1 billion Indian art market but the court appeared shocked that the government hasn't done much about it. "Although the Indian Arts and Crafts Act dates back to 1935, this is -- amazingly -- the first reported appellate case under it," Posner wrote, "Until 1990, the only sanction for violating the false-advertising provision was criminal; and there were no prosecutions -- zero."

Indian artists have long complained that the law has no "teeth" so retired Sen. Ben Nighthorse Campbell (R-Colorado) successfully passed a bill in 2000 that gives artists the right to bring lawsuits in federal court, a right previously reserved only to tribes and the Department of Justice. The Ho-Chunk artist coalition has done that several times and settled some cases out of court.

But the suits that went to trial or before a judge were struck down based on weaknesses identified in the law. The cases are extremely hard to prove, according to federal prosecutors involved in the matter.

Since 1990, only two cases have resulted in some form of action by the federal government. In South Dakota, Wayne Eagleboy, a non-tribal member, pleaded guilty to possession of eagle feathers and paid a $250 fine, while prosecutors ended up dropping charges against Nader Z. Pourhassan, a Utah man accused of marketing Indian dream catchers made by Vietnamese workers.

Get the Decision:
Native American Arts v. Waldron (March 2, 2005)

Related Decision:
Native American Arts v. Waldron (January 22, 2003)

Relevant Links:
Indian Arts and Crafts Board - http://www.doi.gov/iacb

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FTC investigates fake Alaska Native art (11/04)
Alaska Native art campaign a success (10/09)
Fake arts suits owe survival to strengthened law (3/28)
New arts act clears Congress (10/25)
Tribe works to protect art (10/10)
Fake arts still an issue (08/17)
Fighting forgeries in Indian Country (05/18)

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