U.S. Department of the Interior Video: Secretary Deb Haaland on supporting Indian artists and the Indian Arts and Crafts Act

WASHINGTON, D.C. — Efforts to strengthen the Indian Arts and Crafts Act are gaining new steam as government authorities try to enforce a law aimed at addressing fraud and exploitation of Native cultures and ways of life.

On Monday, the Democratic chairman of the Senate Committee on Indian Affairs unveiled a discussion draft bill called the Amendments to Respect Traditional Indigenous Skill and Talent Act of 2023. Also known as the ARTIST Act [PDF], the proposed legislation seeks to protect the arts, crafts, goods and other creative works that American Indian, Alaska Native and Native Hawaiian people have produced since time immemorial.

“The ARTIST Act would update the Indian Arts and Crafts Act to support creative economies and strengthen enforcement of current law and protections against counterfeit competition for Native artists and their works,” the committee said in a news release on behalf of Sen. Brian Schatz (D-Hawaii), the chair of the legislative panel.

“This discussion draft reflects direct stakeholder input as well as years of committee oversight and broad commitment to the protection of Native cultural patrimony and revitalization of Indigenous languages,” the release continued.

As enacted in 1990, the Indian Arts and Crafts Act makes it a crime to market, sell or promote an item as “Indian” unless it was created by a citizen of a state or federally recognized tribe or by an artisan certified by a tribe. The law was written to prevent the historical and ongoing misrepresentation of Native arts by non-Native entities.

Yet Native artists and their advocates have long complained about the lack of enforcement as fakes and frauds have continued to flood the market and undermine an important source of income in Native communities across the United States. It’s an issue that Secretary Deb Haaland, who is the first Native person to lead the Department of the Interior, has recognized as a major problem.

“Native art is a critical part in telling the story of this country and can only be told by Native artists,” Haaland said in a video message after making history as the first Native person in a presidential cabinet. “Buying authentic pottery, jewelry, mixed-media creations, paintings and other art from Native American artists helps support tribal economies.”

“Unfortunately forgery and copies hinder the positive economic opportunities available to Native artists and their families,” said Haaland, who is a citizen of the Pueblo of Laguna.

The law was updated in 2000 and in 2010 to strengthen enforcement. But as fraudulent works continue to be sold in some of the largest art markets in the U.S., the ARTIST Act builds on prior efforts by broadly expanding the ways in which federal officers can investigate suspected violations.

Federal officers, for instance, would be authorized to make arrests, engage in searches and even conduct seizures for suspected violations of the Indian Arts and Crafts Act. They would also be able to inspect shipments coming into the U.S. to ensure compliance with the law, according to provisions of the draft.

And for the first time, Native Hawaiians would gain protections for their creative works. The ARTIST Act modifies existing definitions in federal law to ensure that the original inhabitants of Hawaii aren’t left out of enforcement efforts that are available to American Indian and Alaska Native artisans.

To help pay for these enforcement measures, the ARTIST Act authorizes ways in which people suspected of violating the law can have their property forfeited and be required to shoulder the costs of investigations through fines and penalties. A new Indian Arts and Crafts Forfeiture Fund would be established to assist the work of the Department of the Interior.

---

---

The draft discussion bill also requires visible and permanent labeling of items that come into the U.S. from Canada or Mexico. Anything that could “possibly be mistaken for, arts and crafts made by Native Americans” must be “indelibly marked with the country of origin,” according to provisions of the the ARTIST Act.

Finally, the ARTIST Act would require trainings of federal law enforcement officers, not only on the Indian Arts and Crafts Act but on the recently-enacted Safeguard Tribal Objects of Patrimony Act, also known as the STOP Act. The latter law makes it a crime to export tribal cultural property, another issue that has threatened Native cultures and ways of life.

“For too long, the export and sale of sacred and culturally significant items from Native peoples in Hawaiʻi, Alaska, and across Indian Country has deprived these communities of their own history and heritage,” Schatz said after the measure was passed and signed into law during the prior session of Congress. “Our bill will help stop the black market trafficking of these items and bring them home.”

---

---

Just this month alone, federal authorities announced the resolution of three cases in which the Indian Arts and Crafts Act was violated. In all three instances, non-Natives created and sold fraudulent art by misrepresenting, falsifying and lying about their non-existent tribal backgrounds.

In Washington, 52-year-old Lewis Anthony Rath and 67-year-old Jerry Chris Van Dyke, also known as Jerry Witten, pleaded guilty on March 1 to breaking the law. Both men admitted that they sold fake “Indian” goods in the historic Pike Place Market in Seattle, one of the most heavily trafficked tourist areas in the city.

“When non-Native artists falsely claim Indian heritage, they can take sales away from true Indian artists working to support themselves with skills and techniques handed down for generations,” Nick Brown, the U.S. Attorney for the Western District of Washington, said in a news release.

“Stores and galleries need to partner with artists to ensure those artisans and craftsmen advertised as Indian Artists truly have tribal status,” Brown added, offering advice to businesses to ensure they comply with the law.

Rath falsely claimed to belong to the San Carlos Apache Tribe — while producing items that mimicked the Pacific Northwest tribal cultures that are hundreds of miles from his supposed Native homeland in Arizona. According to federal authorities, the goods were sold at the Raven’s Nest Treasure and the Ye Olde Curiosity Shop, both of which represented to customers that Rath was Native.

And when agents from the U.S. Fish and Wildlife Service, which is part of the Department of the Interior, searched Rath’s home and studio, they found feathers from protected birds — including ones from golden eagles. He pleaded guilty to unlawful possession of these items in addition to violating the Indian Arts and Crafts Act.

Meanwhile, Van Dyke falsely claimed to be from the Nez Perce Tribe and was selling goods that he claimed were of Alaska Native origin — again far away from his supposed tribal background in Idaho. According to federal authorities, he produced the items using materials that were supplied to him by the non-Native owner of a gallery in Pike Place.

“Van Dyke had worked with the gallery for more than ten years, with the gallery owner providing him with woolly mammoth ivory, antlers, animal bones and fossilized walrus ivory to make the pendants that it sold,” the U.S. Attorney’s Office for the Western District of Washington said in the March 1 news release.

A day later in Texas, the U.S. Attorney for the Western District announced the sentencing of Kevin Charles Kowalis, 60, for violating the law. According to federal authorities, he falsely marketed and sold jewelry online that he claimed were of “Zuni” and “Navajo” origin even though he does not belong to either tribal nation.

“Fraud can come in many forms but always carries the intent to deceive a victim,” U.S. Attorney Jaime Esparza of the Western District of Texas said in a news release. “Offenders like this defendant victimize both our cherished Native American community and consumers who believe they’re collecting authentic pieces of Native American culture. We will not stand idle while someone takes advantage of our citizens and our federal resources.”

Kowalis will serve five years probation for his crime and was ordered to forfeit his inventory, pay a special assessment and pay restitution to a victimized artist from the Pueblo of Zuni. The total amount appears to be relatively low — less than $1,500, according to court records. No fines were ordered due to his “inability to pay,” the criminal judgment reads.

“This sentencing is important in the fight to end this type of fraud,” said Assistant Director Edward J. Grace of the U.S Fish and Wildlife Service’s Office of Law Enforcement. “Our dedicated team of special agents works on behalf of the Department of the Interior and the Indian Arts and Crafts Board to protect American Indian and Alaska Native artists and the consumers who purchase authentic Native American art and craftwork.”

Over in Washington, Rath and Van Dyke are due to be sentenced on May 17. As part of a plea agreement, federal prosecutors said they won’t seek prison time for Van Dyke. Rath did not obtain any promises regarding sentencing in his plea agreement. A federal judge, though, will make the final determination on punishments for both individuals.

“The Indian Arts and Crafts Board (IACB) is very pleased that Jerry Chris Van Dyke and Anthony Rath have been brought to justice for their roles in selling fake Indian artwork in violation of the Indian Arts and Crafts Act,” said Director Meridith Stanton, the leader of the IACB, which is part of the Department of the Interior.

“Cases like these are critical to preserving the integrity and viability of authentic Native American art and craftwork in general, as well as preserving the rich cultural heritage of the Nez Perce Tribe and the San Carlos Apache Tribe and the economic livelihoods of their artists and craftspeople,” said Stanton.

The IACB helps look into potential violations of the Indian Arts and Crafts Act, offering examples of possible wrongdoing. But the board’s website notes that items that are marketed or portrayed as “Native American style” or “Native American inspired” can be sold without violating the law — so long as there is “qualified labeling” available to the consumer.

The draft discussion of the ARTIST Act maintains the legality of these categories of “Native American-style jewelry” and “Native American-style arts and crafts” but requires that such items be “indelibly marked” or labeled in a “permanent” fashion, to ensure the consumer is aware that they are not produced by an American Indian, Alaska Native or Native Hawaiian artist.

And while the title of the ARTIST Act contains the word “Indigenous,” the proposed bill does not contain any definitions of a term that has become increasingly used by people who are creating, marketing and selling art that they claim is Native in origin. An example just emerged in New York, where a self-described activist opened an exhibit in February that appropriates numerous elements of Native culture even after admitting to Indianz.Com that they do not belong to any tribal community.

The exhibition, located at a small gallery in the Upper East Side of New York City, notably incorporates the red imagery that Native women developed and brought to prominence to raise awareness to their missing and murdered sisters and relatives. It also includes a visual representation of a Native quilted blanket — albeit with the word “PRETENDIAN” stitched into it.

The Soul of Nations Foundation has prominently marketed the installation as “Indigenous” in origin, a designation that has prompted some Native people to consider reporting it to the Indian Arts and Crafts Board for possible violations of the Indian Artist and Crafts Act. In fact, the non-profit’s executive director and founding member, Ernest Hill, contacted Indianz.Com numerous times in advance of the opening on February 24, soliciting news coverage for an individual who removed all references to their supposed tribal affiliation over a year ago.

Yet Hill, whose parents served as religious missionaries to the Navajo Nation and to other reservations, has since refused to answer questions about the exhibition — including inquiries about the artist’s supposed tribal background. Materials that Soul of Nations produced for the installation claim it is directed to “Indian Country” but the organization has repeatedly refused to respond to inquiries about the use of the designation in connection with someone who admitted they lack ties to any tribal community.

Hill and Soul of Nations also have refused to clarify the source of funding for the project. In press materials, they proudly assert that the installation has received “support” from the Department of State.

On social media, Hill and Soul of Nations gave a different story. In response to a prominent Native environmental leader who has repeatedly attempted to hold the self-described activist accountable for the false claims of tribal belonging, they claimed that “no outside funding was provided for this exhibition.”

When asked to explain the discrepancy between the press materials and the social media post regarding their claim of receiving federal support, Hill and the Soul of Nations refused to respond. The organization started blocking Native users on social media and began restricting interactions on one of its accounts after questions were raised about the installation.

The Soul of Nations website, incidentally, includes a prominent reference to the “Senate Committee on Indian Affairs” on a page that has been used to solicit monetary donations. The Department of State is also listed in the same section of the site.

Since the opening of the installation last month, the self-described “Indigenous” individual has posted on social media about being on “Day 371” of a “cancel” and a ‘call out” that has purportedly kept them “jobless.” The number of days is counted from the February 25, 2022, story on Indianz.Com that reported on their their non-existent tribal affiliations.

The next post on the private account was about the installation, which opened to the public a year following publication of the story. The user has since deleted hundreds of posts about their supposed tribal background from the account, whose name is a variation of an anti-LGBTQ slur.

The Senate Committee on Indian Affairs is accepting comments about the Amendments to Respect Traditional Indigenous Skill and Talent (ARTIST) Act of 2023 until April 14. Comments can be sent to Artist@indian.senate.gov.

Note: Thumbnail photo of Sen. Brian Schatz (D-Hawaii) by Senate Committee on Indian Affairs