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VOICES
of Native People
Volume seven -- February 2001

Note from the editor:  Since late November 2000, two United Methodist churches/fellowships have been named in lawsuits under the Native American Arts and Crafts Act. Although litigation has not yet taken place, and this is one of the first cases involving churches to be heard, there has been an overwhelming amount of requests regarding this legislation and how it might affect Native people.  This issue of Voices of Native People contains reprints of several articles pertaining to arts and crafts and congregations, as well as related articles pertaining to Native people.

Native Churches and the Native American Arts and Crafts Act

At first glance it would seem like such a simple thing--selling Native arts and crafts to raise money for non-profit organizations.  For the most part it is.  No one really seems to mind, and there certainly are larger "fish to fry."  Except that some non-profit organizations designed to fund programs for Native people are large.  Many produce full-color catalogs with mailings targeted for specific niche markets. 

The Native arts and crafts business has become remarkably competitive.  Legislation, which once was enacted to protect buyers from fraudulent merchandisers, now is being used to control regional markets. Churches and non-profit organizations are equally accountable under the law as those who sell arts and crafts in shops and events. 

To be certain, the Federal Indian Arts and Crafts Act has not impacted the amount of non-Indian produced "Indian crafts". Statistics indicate that "Indian-style" crafts produced in Asia are on the increase.  Most people who purchase dreamcatchers, jewelry, and small pieces of beadwork show little concern if a craft item is not produced by a Native person. The simple truth is that the Act does not limit the production of Native-style crafts by non-Native people, only the right to claim that the artist was a Native person, a certified non-member Indian artisan, or of specific tribal descent.  At this point in time, specific Native creations, such as dreamcatchers, medicine-wheels, symbols, designs, etc. have not been tested in the courts as being the exclusive property of Native people.  Or for that matter, particular tribes.

Where the Act has had the greatest impact has been in the high-end world of Native fine art. Some of the finest, internationally known Native artists, with unquestionable heritage are unable to display their work at Indian markets.  In an unusual turn of events, Native artists from Canada, Mexico, and Central America are often allowed to display their work, even without documentation.

This brings us to local Native churches and ministries.  What makes Native churches unique is the fact that they are Native churches.   Tourists buying turquoise and silver jewelry from a gift shop may not be concerned with the origin of the product.  Persons who are attracted to an arts and crafts sale by a Native church, are attracted because that organization is a Native church.

Many church organizations who sell arts and crafts for fund-raising, have found themselves in situations where other Native organizations view them as competition.  What has been the sacra sanct position of church fund-raising in the past, has become the most basic level of business competition for dollars. 

The same reality exists for Native churches as it does for the Native community at large.   There are over a 500,000-1,000,000 primarily Native-blood people in the U.S. which are ineligible for tribal membership.  The amount in any region varies with the requirements of tribes within that region.

  • Many artisans who are tribal members choose to use the designation "of ___ descent".  This also allows those persons whose heritage reflects more than one tribal affiliation (but not multiple memberships), to identify those varying backgrounds.  In a church setting, this classification allows those persons who are 1/64th Indian, and a tribal member, and those that may be 4/4th and ineligible for membership, to be represented equally.  

  • If tribal membership is important to the individual artist or the event, be prepared to identify specific products with specific individuals.  If persons are buying arts and crafts for re-sale, they will need the name of the artist, the tribe from which they are descended or a member, and  (if a member) their enrollment number.  

  • If you are selling one or more high-ticket items, it is best to be prepared with artist information.  If your item is a collaboration, such as a quilt, it is acceptable that not all the participants meet the qualifications of the Act.  The purchaser, however, needs to be informed.

  • Keep good records of any high-ticket item you have sold.  It is unlikely that a purchaser of small items will later ask for more information.  Purchasers of high cost items may wish to resell them at a future date and might need additional information.

  • You may wish to photograph any high-ticket items you are selling.  Put artist information on the back of the picture and keep it on file.

  • Don't be afraid.  Selling Native arts and crafts is an excellent source of income for many ministries.  Many Native artists will be happy to donate works to help you raise money.

  • Remember that most people buy arts and crafts because they love the work itself.  They are not concerned with the background of the artist.  

  • Know your people.  For those who wish to know about the artisan/artist, be prepared to provide them with information.

Things to remember

  • There is a distinction between individuals and businesses/corporations in the law.  The penalties for business and corporations are higher than individuals.

  • Districts, conferences, and jurisdictions are equally accountable under the law.

  • Donít assume that if your event is only among denominational people, that no one will hold you accountable. 

  • If you are uncertain of the law, most tribal offices have a legal advisor who can assist you with information.

  • Donít assume that individual artists/artisans are knowledgeable of the law.   Most Native people are not fully aware of the laws existence.

  • As a church/ministry, you are responsible for knowing the tribal status of the artists/artisans participating in your event.

  • Many of the best known Native artists/artisans have not had tribal membership.  Most purchasers of art are less concerned with membership than they are with bona fide racial heritage and affiliation with a tribal community.  The law is there also to protect the interests of the consumer who will need to provide the same information upon resale.

  • Remember that non-Native people may use Native themes and replicate crafts.  The law only requires them to be accurate in their description of themselves.  If you have an original craft idea, have it copyrighted before you publicly display it.  Native people can steal an idea just as well as non-Natives.

For Your Protection
Knowing the Law

The following is a reprint of an article, which appeared in American Indian Art magazine, Spring 1997, and is an excellent synopsis of the Act.  Written by Ron McCoy, it appeared in the column Legal Briefs under the title Federal Indian Arts and Crafts Regulations Take Effect.  It is used by permission.  

The original column came with this disclaimer:  "This column does not offer legal or financial advice.  Anyone in need of such assistance should consult a professional in the relevant field".  It is reprinted with the same disclaimer.

by Ron McCoy

Not long ago, I noted here that stiffer "federal Indian arts and crafts regulations are coming."  Soon after that column went to press, regulations designed to implement the Indian Arts and Crafts Act of 1990 went into effect.  This development, overseen by the Department of the Interior's Indian Arts and Crafts Board, has far-reaching implications for everyone who buys or sells contemporary American Indian art.

Congress created the Indian Arts and Crafts Board in 1935, charging it with nurturing and expanding marketing opportunities for Native American arts and crafts.  Although Congress also established criminal penalties for selling goods misrepresented as being of Indian manufacture-a maximum $500 fine and six months in prison-the "willful intent" standard put into place for proving a violation of the law made it practically unenforceable.  Persistent questions and complaints about the "Indianness" of various types of art-everything from pottery and squash blossom necklaces to blankets and paintings, eventually prodded legislators into taking more sweeping action.  Hence came the Indian Arts and Crafts Act of 1990 (hereinafter called "the Act" and otherwise known as Public Law 101-644).

Thereafter, the Indian Arts and Crafts Board found itself engaged in drafting administrative regulations geared toward implementing the Act.  These regulations, designed to put some teeth into the business of preventing the marketing of "Indian made" objects not actually made by Indian artists, went into effect on November 30, 1996.  (Please note, thought, that rules pertaining to the Act's trademark provisions are scheduled for publication at a later date.)  Anyone needing more than a brief introduction to these regulations-meaning, anyone engaged in the buying or selling of American Indian art manufactured since 1935-should definitely make his or her way to a reasonably sized library and inspect these regulation, which appeared in the Federal Register of October 21, 1996 (Vol. 61, No. 204, pp. 54551-54556).

The Act "makes it unlawful to offer or display for sale or sell any good 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 within the United States."  Essentially, this is a consumer protection effort, basically a truth-in-advertising law which seeks to guarantee consumers that works of art purchased with the understanding that they are the work of American Indian artists are, in fact, products of Indian labor.

According to these regulations, the term "Indian" means a person who enjoys membership in a federal- or state-recognized Indian tribe, band, nation, Alaska native village, or any other organized group or community. But there's more:  One may also fall under the Act's protective mantle by attaining tribally certified status as a "non-member Indian artisan."  In order to be so certified by the tribe, the artist must be of the Indian ancestry of that tribe.  Furthermore, lack of membership in a recognized tribe, or failure to gain "non-member Indian artisan" does not necessarily prevent an artist, if such is actually the case, from advertising her or his Indian heritage.  Here's how the board explains things: "X is a lineal descendant of a member of the Indian Tribe A as a non-member Indian artisan.  X may not be described in connection with the marketing of an art or craft made by X and an Indian, a Native American, or a member of an Indian tribe, a member of Tribe A, or as a non-member Indian artisan of an Indian tribe. However, the true statement may be used that X is of Indian descent, Native American descent, or Tribe A descent."  So, for example, such descriptions as "Fawn Yellow Bear, of Indian descent," or "Fawn Yellow Bear, of Lakota descent" may be used.

During the time the board deliberated about the appropriate regulations for implementing the Act, a question arose about persons  "adopted by Indian spiritual leaders."  Would they, too, be able to claim tribal association?  The board's final regulations make it clear that one's adoption by an "Indian spiritual leader" or tribal member does not necessarily make that person a member of a recognized tribe.

In a related matter, the use of a tribal name in connection with the term "style" is not prohibited by the Act, on the grounds that such usage is not necessarily misleading.   (As the explanatory material notes, "The rights of tribes to control the use of their names, qualified and unqualified, is an issue of cultural patrimony and is beyond the scope of these regulations.")  As a result, it appears that while someone selling bison robes might not be able to make the claim that the product was "Lakota tanned," they could advertise the hides as "brain-tanned in the old-time Lakota style," if that is in fact the case.

In rejecting suggestions that the Act should embrace the work of musicians, actors and writers, the board noted that the law pertains specifically to Indian arts and crafts, not to all products.  At the same time, it also concluded that "what constitutes an Indian art or craft product is potentially very broad."  In the end, we're left with the view that "Indian arts and crafts mean any art or craft made by an Indian or Indian tribe."

The Indian Arts and Crafts Act of 1990 is of vital concern to anyone who buys and sells contemporary American Indian art.  Although some state laws have addressed the question of the "Indianness" of art offered for sale, the entry of federal authorities into this sphere cannot help but noticeably raise the stakes.  This is made abundantly clear when one considers the penalties to which violators of the Act are subject.

An Indian tribe or Indian arts and crafts organization-"any legally established arts and crafts marketing organization composed of members of Indian tribes"-may bring civil suit against "a person who offers or displays for  sale or sells a good, with or with out 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, Indian arts and crafts organization, resident within the United States."  Civil penalties include injunctive or other suitable relief; treble damages; or "in the case of each aggrieved individual Indian, Indian tribe, or Indian arts and crafts organization, not less than $1,000 for each day on which the offer or display for sale or sale continues," whichever is greater.  Violators may also find themselves coughing up punitive damages and attorney's fees.

So much for the civil side.  On the criminal front, in the case of a first violation, individuals face fines of up to $250,0000 or imprisonment for not more than five years, or both; with " a person other than an individual" (meaning a corporation) the fine can go as high as $1 million.  Subsequent violations by individuals carry fines of up to $1 million and imprisonment for as much as fifteen years, or both; for a business, a fine of as much as $5 million.

Obviously, those who persist in selling bogus "Indian" art run the risk of prolonged, inconvenient and very expensive involvement with the federal judicial system, a far more daunting prospect than dealing with often ineffective, frequently unenforced state statues. 

Vendors will necessarily find themselves put in the position of having to be extremely well informed about the sources of the goods they sell.  (Inevitably, Indian artists and non-member Indian artisans are probably going to be required to produce documentary evidence of their status before many galleries will display their works.)  Furthermore, the Act deals with categories -non-member Indian artisan, for one, and the "of   Tribe A descent" niche, for another-that my well prove confusing for artist, dealers and patrons alike.  Still, abuses in this area have grown so flagrant in recent years that something needed to be done.  Whether the Indian Arts and Crafts Act of 1990 is the answer, or even a workable solution, will only become clear farther down the road.

After the Act:

Looking at the results a few years down the road

The Indian Arts and Crafts Act of 1990 was heralded as the great recourse protecting Native culture from international copies and misrepresentation.  A decade after itís passage, the vast majority of Native people are not even aware of it existence. It can be said, that importers from Europe and Asia are more aware of its substance than most Americans.

It seems as if the latest studies indicate that over 1/3 of Native people in the United States, who are of primarily Native blood are ineligible for tribal membership.  Unlike Canada, which provides for non-status Aboriginal people, the United States offers little recourse for those born out of "tribal-lock".  How this impacts the arts and crafts movement is that many of our most influential international Native artists, and those with regional prominence are not recognized as Indian artists.  What was intended to keep copies from Taiwan and Korea out of the powwow circuit, has shortchanged some of our best artists. Some of the founding educators at the Institute of American Indian Art are among these.

Some interesting things have not happened.  Tribes who had unique art forms have not applied for copyrights to help secure their cultural heritage.  That should have been a natural out-growth of the Act.  There has also been a shortage of prosecution by Native people for those violating the law.   There has also been, up to this point, a limited amount of prosecution for those selling undocumented arts and crafts.  For a law with some of the stiffest penalties on U.S. books, the Arts and Crafts Act has been approached with a rather reluctant embarrassment from the Native community. 

Opinion:  Knowing Who You Are

by Ray Buckley

It was not always popular to be Native American.  In many areas of the Americas it still is not.  Yet, as Native American art and music have come in vogue, and portrayals in motion pictures and television have become increasingly positive, many people are reaching for a Native identity.  Sometimes the identity is a fascination with Native culture.  Sometimes it is the unexplainable attraction and identification with those who have suffered.  Sometimes the roots are close at hand and easily accessible. Sometimes they are faraway or non-existent.

In the political arena, the boundaries are not equitable, but they are at least, identifiable.  Blood quantums   and/or substantial documentation to tribal heritage are the criteria. Therein lies the confusion and the strength of Native people.  We were, and are still, tribal people.  Whether full-blood or metis (mixed-blood) , on this side of the border or the other, we are who we are, because our people recognize us.  Our strength as people has always been our ability to define ourselves and those who will be called by our name.

In the church, the lines are not always clear.  It is our mission to reach out to the disenfranchised.  We seek out the lost, spiritually and culturally.  In our effort to increase Native American awareness within the church, we have stressed the presence of Native Americans in every facet and region of American life.   In many areas of the church, where there is no longer a strong tribal presence, it has sometimes become easier to "discover" a Native person or group.  To fulfill our own expectations of ministry, we have offered "Indianness" as a prize, and then, often resented those who have taken it.

The face of Native American ministries in the church can be a confusing one.

Is there a ministry to those in "Native discovery" within the mission of the church?  What should be the role of Native Americans in ministering to those seeking to find acceptance within the Native American community?

Helping individuals find identity, is a mission of the church.  That identity is found in our relationship to God through Christ.  That identity is also found within the Body of Christ.  Our ministry, therefore, is to all persons.  Period.  That means that as some Native American ministries grow, others will be drawn to the faith community.  What is essentially a Native American-based community may no longer meet the churchís criteria of a Native American congregation or fellowship.   There may be too many non-Indians.

There is a political function that the Church at large, and the Native church in particular, can pursue.  We can address the issues of tribes and individuals and support them in their quest for justice.   We can actively seek social justice for all Native peoples, but by doing so, we must recognize the right of tribes to define themselves.

We can assist those with legitimate claims to tribal affiliation by helping them identify the steps to recognition and net-working them within the faith community. Those who are re-discovering their heritage, which often includes tribal members, often fall prey to pan-Indian apologists who negate tribal traditions in favor of what "all Indians do".

We can also minister to those with marginal claims of Indian ancestry, by assisting them with avenues of learning about their heritage.  Just as critical, is assisting them in appreciating all of the cultures which make up their background, and loving the person God has made them.  To attempt to create something "Indian" is to circumvent the validity of their identity in Christ, and to raise Native identity to an idolatrous level.   It is also to risk losing for the church those unique characteristics that God has given persons for ministry.

We must, however, recognize that tribal membership is not the "end-all".  Membership in a state or federally recognized tribe is a valuable social and political tool.  There are many persons of significant Native ancestry, who, due to tribal or governmental regulations have no legal status as Native people.  In some tribes, membership is lost if one marries outside of their tribe.  In some the blood quantum is 100%.  In some, one can only join the tribe at birth or age 18.  There are many thousands of Native people who were "adopted out" before acceptable laws were passed, and were never registered.  During the relocation of Indian families in the 1950-60ís, many children born away from reservations were unregistered, and still are.  Status is merely a matter of documentation.  It does not measure the heart or consciousness of a Native person.   It is an appropriate time to begin addressing the issues of non-status Native people.  It should begin in our church.

We must not be afraid to "speak the truth in love".  We alienate tribal communities when we are free to label persons as Native American indiscriminately.  We cannot use the words "Native American" to legitimize ministries, even if it suits our purpose.

We must also learn to use "of Native descent", and "Native American advocate",  with equal value for the heritage and gifts that God has given those persons.    These are our children, grandchildren and friends.  The circle of our arms is wide, and they are part of us.

Sometimes the best pastor for a non-Native church is a Native pastor.  Sometimes the best leader for a Native American ministry may be a non-Native leader.  Sometimes it is not the best thing to establish a ministry for the sake of having one.

Our mission as the church is to love the world, not to make them Indians.

Resources for Native Churches

The Rights of Indians and Tribes, by Stephen L. Pevar; The basic ACLU guide to Indian and tribal rights; Southern Illinois University Press; second edition.

There is so much to know about Native cultures and their relationships to governments, that it would take a lifetime to master it all.  Seldom is there one resource that you can pack easily and refer to readily at a moments notice.  The Rights of Indians and Tribes is such a resource.  

This American Civil Liberties Union Handbook contains the basis to give anyone a clear understanding of Native individual and tribal rights. In clear concise language the resource deals with such topics as:

  • A History of Federal Indian Policy

  • Definitions:  "Indian", "Indian tribe,  "Indian Country", and "Indian title"

  • Indian treaties

  • The Trust Responsibility

  • Federal Power over Indian Affairs

  • Tribal Self-Government

  • State Power over Indian Affairs

  • Criminal Jurisdiction in Indian Country 

  • Civil Jurisdiction in Indian Country

  • Taxation

  • Hunting, Fishing, and Gathering Rights

  • Indian Water Rights

  • Civil Rights of Indians

  • The Indian Civil Rights Act

  • The Special Status of Certain Indian Groups

  • Government Services to Indians

  • The Indian Child Welfare Act

  • Judicial Review; as well as specific reviews of laws pertaining to current issues.

In addition to containing valuable information in a brief format, each chapter includes a complete bibliography and notes for further study. 

This is the type of reference that every pastor of a Native congregation, every person working with Native people, and every Native advocate needs to carry in their briefcase.   

"This is exactly the kind of information we need to get out to Indian country.  The book can help to advance the rights of Native Americans because it explains the complex legal issues in a comprehensible, straightforward manner."-John E. Echohawk, executive director, Native American Rights Fund

____________________________________

Voices of Native People is a publication of the:  Native American Communications Office, United Methodist Communications, P.O.  Box 320,  Nashville, TN 37202.

Editor, Ray Buckley, office phone:  (615) 742-5414; fax:  (615) 742-5413;  E-mail: naco@umcom.org

Voices of Native People statement of mission:

Voices is a monthly periodical for local Native faith communities within the United Methodist Church.  Its purpose is to link these communities together by providing culturally relevant information, faith stories, and information about  issues facing Native people, news about the church and other Native communities, and resources for ministry.   Voices also seeks to examine policies and actions affecting Native people within and without the United Methodist Church and their impact on local Native faith communities.

Voices is an independent publication produced by the Native American Communications Office of United Methodist Communications.


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