Authentic Native American - Counterfeits Rampant Online

The Indian Arts and Crafts Board, an agency located in the U.S. Department of the Interior, was created by Congress to promote the economic development of American Indians and Alaska Natives through the expansion of the Indian arts and crafts market. A top priority of the IACB is the implementation and enforcement of the Indian Arts and Crafts Act of 1990, a truth-in-advertising law that provides criminal and civil penalties for marketing products as "Indian-made" when such products are not made by Indians, as defined by the Act.

Click here to go to the IACB website.
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This is a huge task due to the market flooding with items coming in from China and other countries. These items are being marketed as Native American, Indian, Native American Style, Indian Style and etc...

When we (Dakota Exchange, an online seller) go to online selling venues and type Native American into the search bar, we are shocked at the number of fake items that come up. From baskets to sculptures to jewelry, most of the items that come up are counterfeit / fake. This not only makes it impossible for a buyer to know that what they are buying is authentic but it also makes the venue look like they cater to this behavior. The sad part is, we have yet to visit any online selling site that does not offer fake Native American items.

We have brought our concerns about Native American items listed on the various sites to the each sites administration and the response we get seems to be on the fence. Administrators agree with us when we talk to them about obvious violations yet they do nothing or very little to correct the situation.

We have taken our concerns about Native American items listed on various sites to member forums of venues and found out the fast way that doin so was a mistake. The responses were anything from:

"I am married to a Native American so I can call it Indian."

"If the category is 'Native Indian' that is a cover all. Anything related to the Native Indian inclusive of a Zippo Lighter with something that looks like a Native Indian on could belong in that category."

"There are lots of mass produced Native American items on eBay so it must be ok."

"The category does not specify that it is only for certified Native American items."

And so on....

It seems that those that are selling fakes or those without understanding of the law think they can make up the rules as they go. It is either that or they have a total disregard for the law.


The Indian Arts and Crafts Act of 1990

The Indian Arts and Crafts Act of 1990 (P.L. 101-644) is a truth-in-advertising law that prohibits misrepresentation in marketing of Indian arts and crafts products within the United States. It is illegal to offer or display for sale, or sell any art or craft product 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, resident within the United States. For a first time violation of the Act, an individual can face civil or criminal penalties up to a $250,000 fine or a 5-year prison term, or both. If a business violates the Act, it can face civil penalties or can be prosecuted and fined up to $1,000,000.

Under the Act, an Indian is defined as a member of any federally or State recognized Indian Tribe, or an individual certified as an Indian artisan by an Indian Tribe.

The law covers all Indian and Indian-style traditional and contemporary arts and crafts produced after 1935. The Act broadly applies to the marketing of arts and crafts by any person in the United States. Some traditional items frequently copied by non-Indians include Indian-style jewelry, pottery, baskets, carved stone fetishes, woven rugs, kachina dolls, and clothing.

All products must be marketed truthfully regarding the Indian heritage and tribal affiliation of the producers, so as not to mislead the consumer. It is illegal to market an art or craft item using the name of a tribe if a member, or certified Indian artisan, of that tribe did not actually create the art or craft item.

For example, products sold using a sign claiming "Indian Jewelry" would be a violation of the Indian Arts and Crafts Act if the jewelry was produced by someone other than a member, or certified Indian artisan, of an Indian tribe. Products advertised as "Hopi Jewelry" would be in violation of the Act if they were produced by someone who is not a member, or certified Indian artisan, of the Hopi tribe.

Sec. 309.1 How do the regulations in this part carry out the Indian Arts and Crafts Act of 1990?

These regulations define the nature and Indian origin of products protected by the Indian Arts and Crafts Act of 1990 (18 U.S.C. 1159, 25 U.S.C. 305 et seq.) from false representations, and specify how the Indian Arts and Crafts Board will interpret certain conduct for enforcement purposes. 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 resident within the United States.



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Sec. 309.2 What are the key definitions for purposes of the Act?

(a) Indian as applied to an individual means a person who is a member of an Indian tribe or for purposes of this part is certified by an Indian tribe as a non-member Indian artisan (in accordance with the provisions of Sec. 309.4).

(b) Indian artisan means an individual who is certified by an Indian tribe as a non-member Indian artisan.

(c) Indian arts and crafts organization means any legally established arts and crafts marketing organization composed or members of Indian tribes.

(d) Indian products.

(1) In general. Indian product means any art or craft product made by an Indian.
(2) Illustrations. The term "Indian product" includes, but is not limited to:

(i) Art works that are in a traditional or non-traditional Indian style or medium;
(ii) Crafts that are in a traditional or non-traditional Indian style or medium;
(iii) Handcrafts, i.e. objects created with the help of only such devices as allow the manual skill of the maker to condition the shape and design of each individual product.

(3) Exclusion for products made before 1935. The provisions of this part shall not apply to any art or craft products made before 1935.

(e) Indian tribe means--
(1) Any Indian tribe, band, nation, Alaska Native village, or any organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians; or
(2) Any Indian group that has been formally recognized as an Indian tribe by a State legislature or by a State commission or similar organization legislatively vested with State tribal recognition authority.

(f) Product of a particular Indian tribe or Indian arts and crafts organization means that the origin of a product is identified as a named Indian tribe or named Indian arts and crafts organization.

Sec. 309.3 How will statements about Indian origin of art or craft products be interpreted?

(a) In general. The unqualified use of the term "Indian" or of the term "Native American" or the unqualified use of the name of an Indian tribe, in connection with an art or craft product, is interpreted to mean for purposes of this part that--

(1) The maker is a member of an Indian tribe, is certified by an Indian tribe as a non-member Indian artisan, or is a member of the particular Indian tribe named; and
(2) The art or craft product is an Indian product.

(b) Products of Indians of foreign tribes.

(1) In general. The unqualified use of the term "Indian" or of the term "Native American" or the unqualified use of the name of a foreign tribe, in connection with an art or craft product, regardless or where it is produced and regardless of any country-of-origin marking on the product, is interpreted to mean for purposes of this part that--
(i) The maker is a member of an Indian tribe, is certified by an Indian tribe as a non-member Indian artisan, or is a member of the particular Indian tribe named;
(ii) The tribe is resident in the United States; and
(iii) The art or craft product is an Indian product.

(2) Exception where country of origin is disclosed. Paragraph (b) of this section does not apply to any art or craft for which the name of the foreign country of tribal ancestry is clearly disclosed in conjunction with marketing of the product.

(c) Example. X is a lineal descendant of a member of Indian Tribe A. However, X is not a member of Indian Tribe A, nor is X certified by Indian Tribe A as a non-member Indian artisan. X may not be described in connection with the marketing of an art or craft product made by X as an Indian, a Native American, 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.



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Sec. 309.4 How can an individual be certified as an Indian artisan?

(a) In order for an individual to be certified by an Indian tribe as a non-member Indian artisan for purposes of this part--

(1) The individual must be of Indian lineage of one or more members of such Indian tribe; and
(2) The certification must be documented in writing by the governing body of an Indian tribe or by a certifying body delegated this function by the governing body of the Indian tribe.

(b) As provided in section 107 of the Indian Arts and Crafts Act of 1990, Public Law 101-644, a tribe may not impose a fee for certifying an Indian artisan.

Sec. 309.5 What penalties apply?

A person who offers or displays for sale or sells a good, with or without 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 or Indian arts and crafts organization, resident within the United States:

(a) Is subject to the criminal penalties specified in section 1159, title 18, United States Code; and

(b) Is subject to the civil penalties specified in section 305e, title 25, United States Code.

Sec. 309.6 How are complaints filed?

Complaints about protected products alleged to be offered or displayed for sale or sold in a manner that falsely suggests they are Indian products should be made in writing and addressed to the Director, Indian Arts and Crafts Board, Room 4004-MIB, U.S. Department of the Interior, 1849 C Street, NW, Washington, DC 20240.

Dated: October 15, 1996.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management and Budget.
[FR Doc. 96-26876 Filed 10-18-96; 8:45 am]





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Indian Arts Act of 1935
(From the Department of the Interior)

[Public-No. 355-74th Congress]
[S. 2203]
SEC. 5. Any person who shall counterfeit or colorably imitate any Government trade mark used or devised by the Board as provided in section 2 of this Act, or shall, except as authorized by the Board, affix any such Government trade mark, or shall knowingly, willfully, and corruptly affix any reproduction, counterfeit, copy, or colorable imitation thereof upon any products, Indian or otherwise, or to any labels, signs, prints, packages, wrappers, or receptacles intended to be used upon or in connection with the sale of such products, or any person who shall knowingly make any false statements for the purpose of obtaining the use of any such Government trade mark, shall be guilty of a misdemeanor, and upon conviction thereof shall be enjoined from further carrying on the act or acts complained of and shall be subject to a fine not exceeding $2,000, or imprisonment not exceeding six months, or both such fine and imprisonment.

SEC. 6. Any person who shall willfully offer for sale any goods, with or without any Government trade mark, as Indian products or Indian products of a particular Indian tribe or group, resident within the United States or the Territory of Alaska, when such person knows such goods are not Indian products or are not Indian products of the particular Indian tribe or group, shall be guilty of a misdemeanor and be subject to a fine not exceeding $2,000 or imprisonment not exceeding six months, or both such fine and imprisonment.

It shall be the duty of each district attorney, to whom the Board shall report in writing any violation of the provisions of this section which has occurred within his jurisdiction, to cause appropriate proceedings to be commenced and prosecuted in the proper courts of the United States for the enforcement of the penalties herein provided.

Approved, August 27, 1935.

Changing With the Times

As part of legislation to protect intellectual property, Congress went back and revised the Indian Arts Act of 1935, giving it more bite in terms of protection, prosecution and fines. That is when they passed the current law.

Copyright protects original “pictorial, graphic, and sculptural works,” which include two-dimensional works of fine, graphic, and applied art. The following is a list of example of such works: [extracted from actual list]

Artwork applied to clothing or to other useful articles
Drawings, paintings, murals
Fabric, floor, and wallcovering designs
Jewelry designs
Needlework
Original prints such as engravings, etchings, serigraphs, silk screen prints, woodblock prints
Sculpture, such as carvings, ceramics, figurines, maquettes, molds, relief sculptures
Weaving designs, lace designs, tapestries





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Properly Title The Items You Are Selling!

The bottom line is, if what you are selling as Native American or Indian was not made by a Native American artisan, do no title it as such. The law is very clear on this.

List your product as what it is, NOT what it is not!

Dakota Exchange Offers Authentic Native American Items

Dakota Exchange guarantees that the Native American jewelry we sell is genuine. We enjoy promoting the beautiful Native American crafts and culture.

Authenticating Native American crafts should be easy when buying from a reputable dealer. Your first authenticity tip should be the price of the item. Due to the materials used, intricate details and time involved in creating a piece, the cost of authentic Native American jewelry is likely to be somewhat to very expensive.

Those selling authentic items will be able to tell you who the creating artist is. Many times, they will be able to tell you a bit about the artist and their background. The minimum background that you should find acceptable is the artist name and tribe they are enrolled with. (Sometimes, a dealer will even supply the tribal number of the crafting artist.) The basic background information will allow you the ability to contact the tribal headquarters to further authenticate the item you have purchased or are interested in purchasing.


You may be able to authenticate the item further through artist markings. Many artists use a trademark of sorts. You can attempt to identify the artist by their hallmarks, initials or signatures, generally found on the back of the piece. Investigate to see how the item compares to other crafts by the artist.

If a dealer does not tell you about the artist up front, ask questions! Do not assume that all items claimed to be Native American, are Native American. As in many other specialty items and collectibles, there are many counterfeits and copies out there. Use caution when a dealer can not give you minimal information about the artist and the tribe they are enrolled with. If you purchase an art or craft product represented to you as Indian-made, and you learn that it is not, first contact the dealer to request a refund. If the dealer does not respond to your request, you can also contact your local Better Business Bureau, Chamber of Commerce, and the local District Attorney's office, as you would with any consumer fraud complaint. Second, contact the Indian Arts and Crafts Board with your written complaint regarding violations of the Act.