Home Online Work online stores skirt labeling laws to sell Native-inspired crafts at Indian artists’...

online stores skirt labeling laws to sell Native-inspired crafts at Indian artists’ expense

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RAPID CITY, S.D. (KOTA) – Since the 1990s, the Indian Arts and Crafts Act (IACA) has protected producers and consumers alike from false advertising when it comes to American Indian products.

The truth-in-advertising law is supposed to protect Native American-made goods from competing with similar items created by non-Indigenous artists and craftsmen.

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Federal law states it is illegal to sell products labeled as “Native American-made” when the producer is not a member of a U.S. Indian Tribe or a certified Indian artisan with a Tribe.

In essence, for something to be considered an “Indian product,” it must be wholly conceived, designed and hand-crafted by an Indian artist.

State law goes a step further by ruling any article similar to American Indian arts and crafts that is made by a non-Native must be explicitly branded as such.

Recently, less scrupulous producers have found ways to get around the act.

The term “Native American-inspired” has been used in the art circle for years – a labeling loophole in the federal law that outlaws the sale of products falsely suggesting an American Indian origin.

By applying this term to a product, a vendor can sell arts and crafts that look Native American-made without designating them as Indian products.

There have been a few documented cases where a non-Indigenous artist attempted to pass their work off as Native-made: on Dec. 11, a Washington man was charged with violating the (IACA) after he sold crafts while representing himself as a member of the Nez Perce tribe, according to Native News Online; in November, The Daily Beast reported another Washington artist sold wood carvings while falsely claiming to be from the San Carlos Apache Tribe.

However, Jody Gillaspie, director of the Office of the Attorney General’s Consumer Protection Division, says these one-off incidents just scratch the surface of the issue.

Gillaspie works with federal agents to resolve complaints about illegitimate Native American goods.

She worked on an unnamed project in 2018 that parsed online keywords and phrases to identify websites selling Indian arts and crafts.

She says it was determined that 80 percent of items in the search were possibly counterfeit.

Gillaspie says most illegitimate Indian products do not include the recommended method of marketing authentic articles, such as the artist’s name and the name of the artist’s tribe.

“Just because it says ‘Native American product’ doesn’t mean that it is a true, authentic, Native American product that they are getting,” Gillapsie says.

She points to mass-produced goods, like turquoise rings and dreamcatchers, which have saturated the arts and crafts market, as part of the reason why genuine works are comparatively fewer in number.

Searching "dreamcatcher" on Etsy turns up tens of thousands of products, most of which have the...
Searching “dreamcatcher” on Etsy turns up tens of thousands of products, most of which have the phrases “Native American” and “Indian-style.”

Jody Gillaspie, director of the Office of the Attorney General’s Consumer Protection Division, says many of these products are illegitimate and may be breaking federal laws on labeling of Indian products.(Etsy)

Many facsimiles can be found on e-commerce websites, like Etsy and eBay, and the sellers often originate outside of South Dakota, evading branding prerequisites per state law.

Some cheaply-made knock-offs include the phrases “Native American,” “Native” or “Indian-style” in their product titles, which Gillaspie says could falsely suggest an Indian origin and break federal law: “[by] saying it’s Native American, you’re making a disclaimer that this is Native American-made, and you’re going to have to prove that a Native American made the jewelry.”

However, by labeling something as Native American-inspired, any artisan can sell something that looks similar to the real deal, but is often an outdated work that uses old stereotypes and misrepresent the work of contemporary American Indians.

A "pocahonta inspired Baby Indian costume" is one of many commercially-made items sold on...
A “pocahonta inspired Baby Indian costume” is one of many commercially-made items sold on e-commerce websites.

While the clothes aren’t advertised as Indian-made, Native American-inspired goods are sometimes ignorant or even insensitive to the cultures they draw from.(Etsy)

Ashley Pourier, curator of The Heritage Center at Red Cloud Indian School, says this opens the door to stereotyping within the market.

Ashley Pourier, Curator at The Heritage Center at Red Cloud Indian School
Ashley Pourier, Curator at The Heritage Center at Red Cloud Indian School(Ashley Pourier)

“When I hear “Native-inspired,” I do think of those tropes, those items that have just been so commercialized that you forget the original meaning of them,” Pourier says. “[For example], dreamcatchers: we don’t have dreamcatchers down here, because they are not a part of the plains identity. They’re Ojibwe – our relatives over in the Great Lakes area. That is their cultural history, but it’s been used in summer camps and other craft fair things … they’ve lost their entire meaning around them.”

There are penalties if convicted of selling counterfeits, but they vary: violating the IACA can lead to a $250,000 fine, a five-year prison term or both, whereas the consequences of breaking the state law is much more lax, according to Gillaspie.

“Any violation of that is a class 2 misdemeanor. Unfortunately, that’s typically equivalent to a speeding ticket.”

Peter Strong, director of the Racing Magpie, a Lakota-centric arts organization, says there’s another weakness in the federal law: lack of consideration for undocumented Native Americans.

Strong says when some people’s ancestors decided not to officially enroll with a tribe when U.S. Government treaties were drafted in the 18th and 19th centuries, their acts of rebellion actually prevented their descendants from being able to reap certain benefits – federal aid and tribal membership programs included.

“[Their ancestors] said ‘we don’t agree with the United States government, and therefore we don’t want to buy into this system,’ and yet they’re culturally from that tribe,” Strong says. “Unfortunately, those folks cannot represent themselves as being a Native artist under the federal law. That’s not a huge number of people, but I have talked to some folks who fall through those cracks.”

Still, undocumented Native Americans can apply to be a American Indian artisan, or an individual certified by a federally-recognized Indian tribe who can create Indian products.

Gillaspie says she can only recall one time her office has received a formal complaint about a potentially illegitimate art or craft, and that was over 15 years. She believes most consumers simply don’t think about how their goods are made and don’t know what to do when they come across illegal goods.

“We just haven’t had the complaints come into our office, and I think it’s simply because they don’t know where they should go to,” Gillaspie says.

Pourier says consumers and galleries are equally responsible for doing background checks on the Indian goods they come across.

“In that actual buying process, that is the first question: “are you a tribe-enrolled member?” Pourier says. “That is the consumer’s responsibility to {ask} “what’s … Native-inspired? Why is it Native-inspired? It’s within your right to know where things are coming from.”

This report is the first in a three-part series on the labeling of Indian products laws and the impact of illegitimate goods on Native Americans. Part two will focus on a locally-renowned Rapid City retailer’s foray into Native American-inspired products.

Parts two and three of this series are scheduled for Tuesday and Wednesday, respectively.

Copyright 2021 KOTA. All rights reserved.



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