69–010 

Calendar No. 961 

110TH CONGRESS REPORT " ! SENATE 2d Session 110–460 

TO PROTECT INDIAN ARTS AND CRAFTS THROUGH THE 

IMPROVEMENT OF APPLICABLE CRIMINAL PROCEEDINGS, AND FOR OTHER PURPOSES 

SEPTEMBER 15, 2008.—Ordered to be printed 

Mr. DORGAN, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 1255] 

The Committee on Indian Affairs, to which was referred the bill 

(S. 1255), to protect Indian arts and crafts through the improvement of applicable criminal proceedings, and for other purposes, 

having considered the same, reports favorably thereon with amendments and recommends that the bill, as amended, do pass. 

PURPOSE

The purpose of S. 1255 is to authorize any federal law enforcement officer to conduct an investigation of the sale of any good that 

is misrepresented as an Indian-produced good or product that occurs on land under the jurisdiction of the federal government. The 

bill also authorizes the Indian Arts and Crafts Board to refer an 

alleged offense to any federal law enforcement officer for appropriate investigation. Further, S. 1255 permits a federal law enforcement officer to investigate an alleged offense regardless of 

whether such officer receives a referral from the Board and revises 

the requirements for initiating actions for the misrepresentation of 

Indian-produced goods and products and the penalties for such misrepresentation. 

BACKGROUND AND HISTORY

The Indian Arts and Crafts Act of 1990 (P.L. 101–644) is a truthin-advertising law that prohibits misrepresentation in marketing of 

Indian arts and crafts products within the United States. The law 

covers all Indian and Indian-style traditional and contemporary 


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arts and crafts produced after 1935. Under the law, it is illegal to 

offer, sell, or display for sale any Indian art or craft product in a 

manner that falsely suggests it is Indian-made or the product of a 

particular Indian, Indian Tribe, or Indian arts and crafts organization that resides within the United States. For a first offense under 

the Act, an individual can face civil or criminal penalties of 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. 

A major challenge has been establishing a process to investigate 

cases brought under the Act as the Indian Arts and Craft Board 

must rely exclusively on the willingness of other law enforcement 

agencies to proceed with the investigation of complaints. The law 

is currently written so that only the Federal Bureau of Investigation (FBI), acting on behalf of the Attorney General, has the authority to investigate and make arrests in cases of suspected Indian 

art counterfeiters. S. 1255 would amend the law to expand existing 

federal investigative authority by authorizing other federal investigative bodies, such as the Bureau of Indian Affairs (BIA) Office 

of Law Enforcement, in addition to the FBI, to investigate cases of 

misrepresentation of Indian arts and crafts. 

Tribal and individual Indian income is derived from the sale of 

handmade Indian arts and crafts. Yet, millions of dollars are diverted each year from these original artists and Indian tribes by 

those who reproduce and sell counterfeit Indian goods. Few, if any, 

criminal prosecutions have been brought in federal court for such 

violations. Enforcing the criminal law under the Indian Arts and 

Crafts Act is often delayed due to limited resources in light of other 

responsibilities of the FBI, including investigating terrorism activity and violent crimes in Indian country. Therefore, expanding the 

investigative authority to include other federal agencies is intended 

to promote the active investigation of alleged misconduct. 

SUMMARY OF THE AMENDMENT

During an open business meeting on June 19, 2008, the Committee considered and approved an amendment to S. 1255. The 

amendment altered the scope of the conduct of investigations to alleged violations on all land within the jurisdiction of the United 

States. In addition, the amendment altered the submission of findings of alleged violations to any federal or State prosecuting authority, rather than just the Attorney General of the United States. 

SECTION-BY-SECTION ANALYSIS OF S. 1255 

Sec. 1. Short title 

Section 1 states that the bill may be cited as the ‘‘Indian Arts 

and Crafts Amendments Act of 2008.’’ 

Sec. 2. Indian Arts and Crafts 

Section 2 of the bill expands the powers of the Indian Arts and 

Crafts Board to pursue or defend violations of the bill by amending 

25 U.S.C. § 305d and § 305e. 

§ 305d is amended by striking sections (a) and (b) and inserting 

the following provisions. First, the Act defines federal law enforcement officers and their authority to conduct alleged violations of 


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the Indian Arts and Crafts Act within the jurisdiction of the United 

States. S. 1255 defines the process for criminal proceedings 

through a referral by the Board to a Federal law enforcement officer or by the initiation of an investigation by a federal law enforcement officer without the referral of the Board. As part of the criminal proceedings, the findings of an investigation shall be submitted 

to a federal prosecuting authority or the Indian Arts and Craft 

Board. When the Board receives the findings of an investigation, 

the Board may recommend to the Attorney General that criminal 

proceedings be opened and the Board may provide support, should 

that investigation be initiated. In lieu of, or in addition to, any 

criminal proceedings, the Board may recommend that the Attorney 

General pursue a civil action. 

§ 305e is amended by striking subsection (d), ‘‘Definitions,’’ and 

replacing it as subsection (a). It changes the definition of ‘‘Indian 

tribes’’ to be consistent with the Indian Self-Determination and 

Education Assistance Act (25 U.S.C. 450b) and provides other technical and confirming amendments to the ‘‘Definitions’’ subsection. 

Subsection (c), entitled ‘‘Persons that May Initiate Civil Actions,’’ 

in § 305e is struck and replaced as subsection (d), making technical 

and conforming amendments to the subsection. This subsection 

clarifies how the Attorney General, the Board, and any Indian 

Tribe involved in the civil suit may initiate a civil action and recover costs related to attorney’s fees or other costs incurred as a 

direct result of the activities of the investigation. 

In addition, there are a series of other minor technical and confirming amendments to § 305e. 

Sec. 3. Misrepresentation of Indian produced goods and products 

Section 3 amends 18 U.S.C. § 1159 and reorganizes the structure 

of penalties that are applied to violations of the law. This section 

structures the penalties in accordance with the value of the goods 

that are offered, sold, or displayed for sale in violation of the law. 

If the applicable good is equal to or greater than $1,000, for a first 

violation, an individual will be fined not more than $250,000, imprisoned for not more than 5 years, or both. A person other than 

an individual, for example a business, will be fined not more than 

$1,000,000 for a first violation. If the applicable good is less than 

$1,000 an individual will be fined not more than $25,000, imprisoned for not more than 1 year, or both. A person other than an individual, such as a business, will be fined not more than $100,000 

for a first violation. 

In the case of subsequent violations that person, regardless of 

the amount in which the applicable goods are offered, sold, or displayed for sale, an individual will be fined and imprisoned for not 

more than 15 years and a person other than an individual, such 

as a business, will be fined not more than $5,000,000. 

Section 3 also clarifies the definition of the term ‘‘Indian tribe,’’ 

for purposes of this section. There are also a number of other technical and conforming amendments to § 1159. 

LEGISLATIVE HISTORY

S. 1255 was introduced in the Senate on May 1, 2007, by Senator 

John McCain (R–Ariz.). S. 1255 was received in the Senate and referred to the Committee on Indian Affairs on May 1, 2007. The 


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Committee ordered the bill to be reported favorably, with an 

amendment, on June 19, 2008. 

COMMITTEE RECOMMENDATION

On June 19, 2008, the Committee on Indian Affairs convened a 

business meeting to consider S. 1255, and other measures. During 

the business meeting, the Committee voted, by a voice vote, to report S. 1255 favorably, with an amendment, to the full Senate with 

a recommendation that it do pass. 

COST AND BUDGETARY CONSIDERATIONS

The following cost estimate for S. 1255, as provided by the Congressional Budget Office, is set forth below: 

S. 1255—Indian Arts and Crafts Amendments Act of 2007 

S. 1255 would allow any federal law enforcement officer to investigate the sale of counterfeit Indian art products, rather than only 

employees of the Federal Bureau of Investigation as under current 

law. Based on information from the Department of Justice (DOJ), 

CBO estimates that the cost of implementing S. 1255 would not be 

significant because it would not appreciably change the workload 

of federal law enforcement officers or DOJ attorneys who would 

prosecute the cases. 

S. 1255 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

S. 1255 also would modify the penalties for persons who market 

or sell counterfeit Indian arts and crafts. Under current law, the 

maximum penalties are the same for all offenders, regardless of the 

value of the goods. The bill would reduce the maximum penalties 

for offenders who market or sell counterfeit items priced at less 

than $1,000. Criminal fines are recorded as revenues, deposited 

into the Crime Victims Fund, and later spent. CBO estimates that 

enacting S. 1255 could reduce the amount of revenues deposited 

into the fund and direct spending from the fund, but any such effects would be insignificant. 

The CBO staff contacts for this estimate are Leigh Angres and 

Jeffrey LaFave. The estimate was approved by Peter H. Fontaine, 

Assistant Director for Budget Analysis. 

REGULATORY IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires each report accompanying a bill to evaluate the regulatory and paperwork impact that would be incurred in carrying 

out the bill. The Committee believes that S. 1255 will have a minimal impact on regulatory or paperwork requirements. 

EXECUTIVE COMMUNICATIONS

There have been no executive communications received by the 

Committee with regards to this legislation. 


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CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by S. 1255, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new matter is printed in italic, existing law in which no change is proposed is shown in roman). Enactment of S. 1255, as amended, would affect no changes in existing 

law except the following provisions: 

25 U.S.C. § 305d 

§ 305d. [Referral for criminal and civil violations; complaints; recommendations] Criminal Proceedings; 

Civil Actions 

ø(a) The Board may receive complaints of violations of section 

1159 of title 18 and refer complaints of such violations to the Federal Bureau of Investigation for appropriate investigation. After reviewing the investigation report, the Board may recommend to the 

Attorney General of the United States that criminal proceedings be 

instituted under that section. 

ø(b) The Board may recommend that the Secretary of the Interior refer the matter to the Attorney General for civil action under 

section 305e of this title.¿ 

(a) DEFINITION OF FEDERAL LAW ENFORCEMENT OFFICER.—In 

this section, the term ‘‘Federal law enforcement officer’’ includes a 

Federal law enforcement officer (as defined in section 115(c) of title 

18, United States Code). 

(b) AUTHORITY TO CONDUCT INVESTIGATIONS.—Any Federal law 

enforcement officer shall have the authority to conduct an investigation relating to an alleged violation of this Act occurring within the 

jurisdiction of the United States. 

(c) CRIMINAL PROCEEDINGS.— 

(1) INVESTIGATION.— 

(A) IN GENERAL.—The Board may refer an alleged violation of section 1159 of title 18, United States Code, to any 

Federal law enforcement officer for appropriate investigation. 

(B) REFERRAL NOT REQUIRED.—A Federal law enforcement officer may investigate an alleged violation of section 

1159 of that title regardless of whether the Federal law enforcement officer receives a referral under subparagraph 

(A). 

(2) FINDINGS.—The findings of an investigation of an alleged 

violation of section 1159 of title 18, United States Code, by any 

Federal department or agency under paragraph (1) (A) shall be 

submitted to— 

(A) A Federal or State prosecuting authority; or 

(B) the Board. 

(3) RECOMMENDATIONS.—On receiving the findings of an investigation under paragraph (2), the Board may— 

(A) recommend to the Attorney General that criminal proceedings be initiated under 13 section 1159 of title 18, 

United States Code; and 


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(B) provide such support to the Attorney General relating 

to the criminal proceedings as the Attorney General determines to be appropriate. 

(d) CIVIL ACTIONS.—In lieu of, or in addition to, any criminal 

proceeding under subsection (c), the Board may recommend that the 

Attorney General initiate a civil action under section 6. 

25 U.S.C. § 305e 

§ 305e. Cause of action for misrepresentation of Indian produced goods 

(a) DEFINITIONS.—In this section: 

(1) INDIAN PROJECT.—The term ‘‘Indian’’ means an individual that— 

(A) is a member of an Indian tribe; or 

(B) is certified as an Indian artisan by an Indian tribe. 

(2) INDIAN PRODUCT.—The term ‘‘Indian product’’ has the 

meaning given the term in any regulation promulgated by the 

Secretary. 

(3) INDIAN TRIBE.— 

(A) IN GENERAL.—The term ‘‘Indian tribe’’ has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b). 

(B) INCLUSION.—The term ‘‘Indian tribe’’ includes, for 

purposes of this section only, an Indian group that has 

been formally recognized as an Indian tribe by— 

(i) a State legislature; 

(ii) a State commission; or 

(iii) another similar organization vested with State 

legislative tribal recognition authority. 

(4) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of 

the Interior. 

ø(a)¿ (b) Injunctive or equitable relief; damages 

A person specified in øsubsection (c)¿ subsection (d) of this section may, in a civil action in a court of competent jurisdiction, bring 

an action against a person who, directly or indirectly, 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, to— 

(1) obtain injunctive or other equitable relief; and 

(2) recover the greater of— 

(A) treble damages; or 

(B) 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. 

For purposes of paragraph (2)(A), damages shall include any and 

all gross profits accrued by the defendant as a result of the activities found to violate this subsection. 

ø(b)¿ (c) Punitive damages; attorney’s fee 

In addition to the relief specified in øsubsection (a)¿ subsection 

(b) of this section, the court may award punitive damages and the 

costs of øsuit¿ the civil action and a reasonable attorney’s fee. 


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ø(c) Persons who may initiate civil actions 

ø(1) A civil action under subsection (a) of this section may 

be commenced— 

ø(A) by the Attorney General of the United States upon 

request of the Secretary of the Interior on behalf of an Indian who is a member of an Indian tribe or on behalf of 

an Indian tribe or Indian arts and crafts organization; 

ø(B) by an Indian tribe on behalf of itself, an Indian who 

is a member of the tribe, or on behalf of an Indian arts 

and crafts organization; or 

ø(C) by an Indian arts and crafts organization on behalf 

of itself, or by an Indian on behalf of himself or herself. 

ø(2) Any amount recovered pursuant to this section shall be 

paid to the individual Indian, Indian tribe, or Indian arts and 

crafts organization, except that— 

ø(A) in the case of paragraph (1)(A), the Attorney General may deduct from the amount recovered— 

ø(i) the amount for the costs of suit and reasonable 

attorney’s fees awarded pursuant to subsection (b) of 

this section and deposit the amount of such costs and 

fees as a reimbursement credited to appropriations 

currently available to the Attorney General at the 

time of receipt of the amount recovered; and 

ø(ii) the amount for the costs of investigation awarded pursuant to subsection (b) of this section and reimburse the Board the amount of such costs incurred as 

a direct result of Board activities in the suit; and 

ø(B) in the case of paragraph (1)(B), the amount recovered for the costs of suit and reasonable attorney’s fees 

pursuant to subsection (b) of this section may be deducted 

from the total amount awarded under subsection (a)(2) of 

this section.¿ 

(d) PERSONS THAT MAY INITIATE CIVIL ACTIONS.— 

(1) IN GENERAL.—A civil action under subsection (b) may be 

initiated by— 

(A) the Attorney General, at the request of the Secretary 

acting on behalf of— 

(i) an Indian tribe; 

(ii) an Indian; or 

(iii) an Indian arts and crafts organization; 

(B) an Indian tribe, acting on behalf of— 

(i) the Indian tribe; 

(ii) a member of that Indian tribe; or 

(iii) an Indian arts and crafts organization; 

(C) an Indian; or 

(D) an Indian arts and crafts organization. 

(2) DISPOSITION OF AMOUNTS RECOVERED.— 

(A) IN GENERAL.—Except as provided in subparagraph 

(B), an amount recovered in a civil action under this section shall be paid to the Indian tribe, the Indian, or the Indian arts and crafts organization on the behalf of which 

the civil action was initiated. 

(B) EXCEPTIONS.— 


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(i) ATTORNEY GENERAL.—In the case of a civil action 

initiated under paragraph (1)(A), the Attorney General 

may deduct from the amount— 

(I) the amount of the cost of the civil action and 

reasonable attorney’s fees awarded under subsection 2(c), to be deposited in the Treasury and 

credited to appropriations available to the Attorney 

General on the date on which the amount is recovered; and 

(II) the amount of the costs of investigation 

awarded under subsection (c), to reimburse the 

Board for the activities of the Board relating to the 

civil action. 

(ii) the cost of the civil action; and 

(II) reasonable attorney’s fees. 

ø(d) Definitions 

øAs used in this section— 

ø(1) the term ‘‘Indian’’ means any individual who is a member of an Indian tribe; or for the purposes of this section is certified as an Indian artisan by an Indian tribe; 

ø(2) subject to subsection (f) of this section, the terms ‘‘Indian product’’ and ‘‘product of a particular Indian tribe or Indian arts and crafts organization’’ has the meaning given such 

term [1] in regulations which may be promulgated by the Secretary of the Interior; 

ø(3) the term ‘‘Indian tribe’’ means— 

ø(A) any Indian tribe, band, nation, Alaska Native village, or other 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 

ø(B) 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; and 

ø(4) the term ‘‘Indian arts and crafts organization’’ means 

any legally established arts and crafts marketing organization 

composed of members of Indian tribes. 

ø(e) Severability 

øIn the event that¿ (e) SAVINGS PROVISION.—If any provision of 

this section is held invalid, it is the intent of Congress that the remaining provisions of this section shall continue in full force and 

effect. 

(f) Regulations 

Not later than 180 days after November 9, 2000, the Board shall 

promulgate regulations to include in the definition of the term ‘‘Indian product’’ specific examples of such product to provide guidance 

to Indian artisans as well as to purveyors and consumers of Indian 

arts and crafts, as defined under this Act. 


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18 U.S.C. § 1159 

§ 1159. Misrepresentation of Indian produced goods and 

products 

(a) It is unlawful to offer or display for sale or sell any 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. 

ø(b) Whoever knowingly violates subsection (a) shall— 

ø(1) in the case of a first violation, if an individual, be fined 

not more than $250,000 or imprisoned not more than five 

years, or both, and, if a person other than an individual, be 

fined not more than $1,000,000; and 

ø(2) in the case of subsequent violations, if an individual, be 

fined not more than $1,000,000 or imprisoned not more than 

fifteen years, or both, and, if a person other than an individual, 

be fined not more than $5,000,000.¿ 

(b) PENALTY.—Any person that knowingly violates subsection (a) 

shall— 

(1) in the case of a first violation by that person— 

(A) if the applicable goods are offered or displayed 

for sale at a total price of $1,000 or more, or if the applicable goods are sold for a total price of $1,000 or 

more— 

(i) in the case of an individual, be fined not more 

than $250,000, imprisoned for not more than 5 years, 

or both; and 

(ii) in the case of a person other than an individual, 

be fined not more than $1,000,000; and 

(B) if the applicable goods are offered or displayed for 

sale at a total price of less than $1,000, or if the applicable 

goods are sold for a total price of less than $1,000— 

(i) in the case of an individual, be fined not more 

than $25,000, imprisoned for not more than 1 year, or 

both; and 

(ii) in the case of a person other than an individual, 

be fined not more than $100,000; and 

(2) in the case of a subsequent violation by that person, regardless of the amount for which any good is offered or displayed for sale or sold— 

(A) in the case of an individual, be fined under this title, 

imprisoned for not more than 15 years, or both; and 

(B) in the case of a person other than an individual, be 

fined not more than $5,000,000. 

(c) As used in this section— 

(1) the term ‘‘Indian’’ means any individual who is a member 

of an Indian tribe, or for the purposes of this section is certified 

as an Indian artisan by an Indian tribe; 

(2) the terms ‘‘Indian product’’ and ‘‘product of a particular 

Indian tribe or Indian arts and crafts organization’’ has the 

meaning given such term in regulations which may be promulgated by the Secretary of the Interior; 

ø(3) the term ‘‘Indian tribe’’ means— 


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ø(A) any Indian tribe, band, nation, Alaska Native village, or other 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 

ø(B) 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; and¿ 

(3) the term ‘‘Indian tribe’’— 

(A) has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 

U.S.C. 450b); and 

(B) includes, for purposes of this section only, an Indian 

group that has been formally recognized as an Indian tribe 

by— 

(i) a State legislature; 

(ii) a State commission; or 

(iii) another similar organization vested with State 

legislative tribal recognition authority; and’’. 

(4) the term ‘‘Indian arts and crafts organization’’ means any 

legally established arts and crafts marketing organization composed of members of Indian tribes. 

(d) In the event that any provision of this section is held invalid, 

it is the intent of Congress that the remaining provisions of this 

section shall continue in full force and effect. 

Æ 


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