Indian Arts and Crafts: Size of Market and Extent of Misrepresentation Are Unknown
Published: 2011-04-28T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: In 1935 the Indian Arts and Crafts Act was enacted, establishing the Indian Arts and Crafts Board as an entity within the Department of the Interior. A priority of the Board is to implement and enforce the act's provisions to prevent misrepresentation of unauthentic goods as genuine Indian arts and crafts. As the market for Indian arts and crafts grew and the problem of misrepresentation persisted, the act was amended to, among other things, enhance the penalty provisions and strengthen enforcement. GAO was asked to examine (1) what information exists regarding the size of the market and the extent to which items are misrepresented and (2) actions that have been taken to curtail the misrepresentation of Indian arts and crafts and what challenges, if any, exist. In addition, this report provides information on some options available to protect Indian traditional knowledge and cultural expressions. GAO analyzed documents and interviewed international, federal, state, and local officials about the arts and crafts market and enforcement of the act. GAO is making no recommendations in this report. In commenting on a draft of this report, the Departments of Commerce and Homeland Security generally agreed with the contents of the report. The Departments of Commerce, Homeland Security, the Interior, and Justice also provided technical comments which were incorporated into the report as appropriate..
section_title: What GAO Found
paragraphs: The size of the Indian arts and crafts market and extent of misrepresentation are unknown because existing estimates are outdated, limited in scope, or anecdotal. Also, there are no national data sources containing the information necessary to make reliable estimates. For example, the most often cited national estimates about the size of the market and the extent of misrepresentation come from a 1985 Department of Commerce study. GAO found that not only is this study outdated, but the estimates included in the study are unreliable because they were based on anecdotal information and not systematically collected data. No national database specifically tracks Indian arts and crafts sales or misrepresentation, and GAO found that no other national databases contain information specific or comprehensive enough to be used for developing reliable estimates. Moreover, GAO determined that to conduct a study that could accurately estimate the size of the Indian arts and crafts market and the extent of misrepresentation would be a complex and costly undertaking and may not produce reliable estimates. Federal and state agencies have relied largely on educational efforts rather than law enforcement actions to curtail misrepresentation of Indian arts and crafts, but these efforts are hampered by a number of challenges, including ignorance of the law and competing law enforcement priorities. From fiscal year 2006 to fiscal year 2010, the Indian Arts and Crafts Board received 649 complaints of alleged violations of the Indian Arts and Crafts Act. The Board determined that 150 of these complaints, or 23 percent, involved an apparent violation of the law, and it referred 117 of the complaints for further investigation by law enforcement officers, but no cases were filed in federal court as a result. According to the Board and law enforcement officials, support from law enforcement personnel and others to prosecute these cases has been sporadic because of higher law enforcement priorities. Therefore, the Board has relied primarily on educational efforts to curtail misrepresentation. For example, in response to complaints, the Board sent educational and warning letters to about 45 percent of alleged violators, and it produced educational brochures and participated in other educational efforts for artists, sellers, consumers, and law enforcement officers. GAO identified one arts organization that has successfully used civil actions to curtail misrepresentation, but this approach can be costly and time-consuming. U.S. federal and state laws protecting intellectual property do not explicitly include Indian traditional knowledge and cultural expressions--such as ceremonial dances or processes for weaving baskets--and therefore provide little legal protection for them. Some international frameworks offer protection for traditional knowledge and cultural expressions, but the federal government has not yet undertaken steps to implement these frameworks in the United States. Other countries, like Panama and New Zealand, have taken actions--which offer options for consideration--to protect the intellectual property of indigenous groups.

section_title: Letter
paragraphs: The sale of goods falsely represented as authentic Indian-produced arts  and crafts has been a persistent and potentially growing problem in the  United States. At least 1.9 million members of federally recognized Indian  tribes live in the United States, some of whom are artisans who create  pottery, baskets, rugs, and other types of arts and crafts for sale to  wholesalers, retailers, or the public directly at Indian art shows and  markets. Misrepresentation by sale of unauthentic products created by  non-Indians, including imports from foreign countries, is a matter of great  concern to Indian artisans, who may have to reduce their prices or lose  sales because of competition from lower-priced imitation products. This  could have a potentially significant negative economic effect on the Indian  arts and crafts market and, consequently, on the individuals and tribes  who rely on this market for income.
Furthermore, Indian artisans have voiced concerns that the traditional  knowledge of how to create these goods—often passed down from  generation to generation within the tribes—will not be carried forward by  younger generations if they cannot make a living producing these goods.  Likewise, consumers may suffer from misrepresentation if they are  fraudulently led to believe that imitation products they purchase are  authentic and, upon discovery, may cause them to question the  authenticity of genuine goods, further damaging the Indian arts and crafts  market at large. These concerns also extend beyond tangible arts and  crafts to include other types of traditional knowledge and cultural  expression, such as song, dance, and writings, which can be  misappropriated by outsiders and used for profit.
To address misrepresentation of arts and crafts, the Indian Arts and Crafts  Act was enacted in 1935, establishing the Indian Arts and Crafts Board  within the Department of the Interior. The Board is responsible for  promoting the economic welfare of Indian tribes and Indian individuals  through the development of Indian arts and crafts and expansion of the  market for products of Indian art and craftsmanship. The act also provided  misdemeanor penalties for anyone willfully misrepresenting goods as  Indian produced. The Board coordinates education and enforcement  efforts to help increase public awareness and compliance with the act.
As the market for Indian arts and crafts has grown and the problem of  misrepresentation persisted, the Indian Arts and Crafts Act was  significantly amended in 1990, 2000, and 2010 to, among other things,  increase penalties and strengthen enforcement. The 1990 amendment  added civil remedies and increased the criminal penalties for knowingly  misrepresenting Indian products, so that it is a felony rather than a  misdemeanor. In addition to civil actions by the Attorney General, the  amendments authorized civil suits by an Indian tribe on behalf of itself, an  individual Indian who is the member of the tribe, or an Indian arts and  crafts organization. The amendments also authorized the Board to refer  complaints to the Department of Justice’s Federal Bureau of Investigation  (FBI) for investigation and then to the Attorney General for prosecution or  to recommend that the Secretary of the Interior refer the matter to the  Attorney General for civil action. Subsequently, in 2007, Interior entered  into a memorandum of understanding with the Department of Justice that  delegated authority to Interior to investigate alleged violations of the act.  The 2000 amendment to the act also expanded civil enforcement by  authorizing Indian arts and crafts organizations, as well as individual  Indians, to file civil suits on their own. It also enabled them to file suits  against the manufacturers, wholesalers, and others involved in the chain  of distribution of the misrepresented product, even if they are not in direct  competition with the plaintiff. Most recently—on July 29, 2010—the act  was amended again to, among other things, increase penalties and  empower all federal law enforcement officers to investigate alleged  violations.
Federal customs regulations and trademark laws, as well as state  trademark and Indian arts and crafts laws, also address the authenticity of  Indian-style arts and crafts and provide some potential deterrence to  misrepresentation. For example, since 1990, U.S. Customs and Border  Protection regulations have required that imported Native American-style  arts and crafts must generally be indelibly marked with the country of  origin by cutting, die-sinking, engraving, stamping, or some other equally  permanent method. In addition, trademarks used in commerce can be  registered with the U.S. Patent and Trademark Office or a state by Indian  artists, tribes, or arts and crafts organizations to mark authentic goods,  providing a means for the public to identify genuine Indian products.  Finally, 12 states—Alaska, Arizona, California, Colorado, Minnesota,  Montana, Nebraska, Nevada, New Mexico, Oklahoma, South Dakota, and  Texas—have enacted laws prohibiting the misrepresentation of Indian arts  and crafts.
In this context, you asked us to examine (1) what information exists on  the size of the arts and crafts market and the extent to which items are  misrepresented and (2) actions that have been taken to curtail the  misrepresentation of Indian arts and crafts and what challenges, if any,  exist. In addition, given your interest in the potential misrepresentation of  less tangible forms of Indian expression, you asked us to provide  information on some of the options available to protect Indian traditional  knowledge and cultural expression.
To determine the size of the market and the extent to which items are  misrepresented, we collected and reviewed existing studies and reports  from the Departments of Commerce and the Interior and from state  agencies that estimate the size of the Indian arts and crafts market or the  extent of misrepresentation in the market. We interviewed the authors of  these studies to discuss their methodologies and determine the reliability  of their estimates. We also interviewed representatives and gathered  documentation from national, state, and local Indian arts organizations to  obtain information about the Indian arts and crafts market. We reviewed  data from the Board’s complaint files, and, after interviewing  knowledgeable officials and following up to correct obvious or logical  errors, we determined that the data were sufficiently reliable for the  purpose of this engagement. We also reviewed the U.S. International Trade  Commission’s import database, and Commerce’s Bureau of Economic  Analysis consumer spending pattern and retail sales database, to  determine if they could be used to estimate the size of the Indian arts and  crafts market. We determined that the data from these sources could not  be used for that purpose and therefore did not assess their reliability.  During our visits to Alaska, Illinois, New Mexico, and Oklahoma, we also  interviewed individual Indian artists for their perspectives on the extent of  misrepresentation.
To identify actions that have been taken to curtail the misrepresentation of  Indian arts and crafts and what challenges, if any, exist, we interviewed  law enforcement officials from Interior and its Bureau of Indian Affairs, as  well as officials from the Board. We also interviewed officials from the  Department of Justice’s Executive Office for United States Attorneys and  the FBI; the Department of Commerce’s U.S. Patent and Trademark Office  and U.S. Census Bureau; and the Department of Homeland Security’s  Bureau of U.S. Customs and Border Protection. To identify enforcement  efforts, we reviewed information from the Executive Office for United  States Attorneys on federal matters and cases filed under the Indian Arts  and Crafts Act. We also interviewed representatives from 8 of the 12 states  that have enacted their own Indian arts and craft laws—Alaska, Arizona,  Montana, Nevada, New Mexico, Oklahoma, South Dakota, and Texas—to  understand how their laws are enforced. To identify the options available  to protect Indian traditional knowledge and cultural expressions, we  analyzed law review articles, U.S. intellectual property laws, foreign laws  and programs, and international legal instruments to protect indigenous  traditional knowledge and cultural expressions. We interviewed experts in  international indigenous intellectual property law, including an expert  from the World Intellectual Property Organization, and representatives  from countries that currently have or have previously had laws or  programs in place.
We conducted this performance audit from April 2010 through April 2011,  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
subsections: section_title: Background
paragraphs: The 1935 Indian Arts and Crafts Act created the Indian Arts and Crafts  Board within Interior to promote the economic welfare of Indian tribes  and individuals through the development of Indian arts and crafts and  through the expansion of the market for the products of Indian art and  craftsmanship. In support of this mission, the Board:  implements the Indian Arts and Crafts Act, as amended;  increases the participation of Native Americans in the fine arts and crafts  business;    assists emerging artists entering the market; and    assists Native American cultural leaders in supporting the evolution and  preservation of tribal cultural activities.
The Board’s policies are determined by its five commissioners—currently  including four representatives from American Indian and Alaska Native  communities and the Deputy Director of the Federal Trade Commission’s  Bureau of Consumer Protection—who are appointed by the Secretary of  the Interior and serve without compensation. With a fiscal year 2010  budget of about $1.2 million, the Board currently has three professional  and two administrative staff in the Washington, D.C., office to carry out its  responsibilities, including a Director with overall responsibility for  implementing the Board’s policies, and four full-time and one part-time  temporary staff to operate three museums.
A priority of the Board is the implementation and enforcement of the act’s  provisions to prevent misrepresentation. The Indian Arts and Crafts Act is  essentially a truth-in-advertising law that prohibits misrepresentation in  the marketing of Indian arts and crafts products within the United States  and provides criminal and civil penalties for marketing products as Indian  made when such products are not made by Indians. Under the act, it is  unlawful to offer or display for sale or to 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 in the United States. Under the act and its implementing  regulations, an Indian is an individual who is a member of an Indian tribe  or who is certified by an Indian tribe as a nonmember Indian artisan.  Indian tribes include federally recognized tribes, Alaska Native villages,  and state-recognized tribes. An Indian arts and crafts organization is any  legally established arts and crafts marketing organization composed of  members of Indian tribes. The terms “Indian product” and “product of a  particular Indian tribe or Indian arts and crafts organization” are defined in  two regulations promulgated by the Board. The regulations implementing  the Indian Arts and Crafts Act of 1990 that were issued in October 1996  defined in general the nature and origin of Indian products. In June 2003,  as directed by the Indian Arts and Crafts Enforcement Act of 2000, the  Board promulgated additional regulations that include specific examples  of items that may be marketed as Indian products and when non-Indians  may make and sell Indian-style arts and crafts, thereby informing the  public as to when an individual may be subject to civil or criminal  penalties for falsely marketing a good as an Indian product.
The act designated the Board as the primary agency to handle complaints of  violations of the act. Individuals who witness market activity they believe  may be in violation of the act can contact the Board to report this activity in  a number of ways. The Board’s Web site provides an online form that can be  completed and submitted to the Board’s staff for review, which also  includes examples of how violations can occur at various venues, such as  retail stores, powwows, Internet Web sites, or when an artist and consumer  meet in person. The form permits the person submitting the complaint to  provide personal contact information or file anonymously, and it requests  information on the alleged violator, date, location, and venue of the  violation; the type of art or craft involved; how the item was offered for sale  and what representations were made about it—such as statements  regarding authenticity of the item or the tribal membership of the maker— and any documentation that may help to verify the complaint, such as  advertisements or catalogs. Complaints may also be written or faxed  directly to the Board’s office in Washington, D.C., or may be reported by  phone directly to the office or via the Board’s toll-free complaint line,  (888) ART-FAKE. The Board maintains computerized files of complaints  and tracks subsequent follow-up actions by its staff or other federal or state  agencies to which it refers complaints for further investigation.
Lacking criminal investigators on its own staff, the Board relies on other  law enforcement agencies for assistance in enforcing the Indian Arts and  Crafts Act. Since the mid-1990s, the Board has referred complaints to the  FBI; Interior’s Bureau of Indian Affairs, Office of Inspector General, and  National Park Service; and state attorneys general for investigation. The  Indian Arts and Crafts Act of 1990 designated the FBI to investigate  violations of the act. To bolster its investigative resources, the Board  worked with Interior to put in place in 2007 a memorandum of  understanding between the Departments of Justice and the Interior to  allow all appropriate Interior law enforcement officers to work such cases.  The Board now has a memorandum of agreement with National Park  Service Investigative Services for a full-time dedicated agent to work on  Indian Arts and Crafts Act cases through a reimbursable support  agreement. The dedicated National Park Service agent coordinates with  fellow National Park Service agents on these investigations and  encourages collaborations with other Interior law enforcement officers.  The Board also coordinates with offices of state attorneys general on  investigations of alleged violations of state Indian arts and crafts laws.  After passage of the Indian Arts and Crafts Amendments Act of 2010, any  federal law enforcement officer can investigate alleged violations of the  act.
To further protect Indian artists, the Board works with the Patent and  Trademark Office to promote registration of trademarks for arts and crafts  marketing purposes. A trademark is a distinctive sign or indicator—such  as a word, name, symbol, design, image, or any combination thereof—used  by a person or organization to uniquely identify the source of its products  or services and to distinguish them from those of other individuals or  entities. Registering trademarks with the Patent and Trademark Office or a  state bars others from registering marks likely to cause confusion with  previously registered trademarks. Trademarks are part of what is  collectively termed “intellectual property,” which includes copyrights,  patents, and trade secrets—anything that one might create—as  distinguished from more tangible things that might be owned, such as a  house or car, or “real property.” A copyright is the exclusive right to  reproduce, publish, sell, or distribute, for a certain period of time, original  works of authorship fixed in any tangible medium of expression, such as  literary, musical, or artistic works. The Board educates Indian artists  about intellectual property through on-site meetings with tribal  governments and members and distributes a brochure on the subject. The  brochure also refers artists needing additional information to the World  Intellectual Property Organization—a specialized agency of the United  Nations dedicated to developing a balanced and accessible international  intellectual property system.
In June 2005, Interior’s Office of Inspector General issued a review of  counterfeit Indian arts and crafts. The report concluded that the extent of  the problem is difficult to quantify because of limited statistics, conflicting  perceptions of what makes something counterfeit, and public  misconceptions about federal and state laws. The report also concluded  that enforcement of the Indian Arts and Crafts Act largely depends on the  cooperation of agencies outside of Interior’s control and that criminal  enforcement actions have had no measurable effect on counterfeit activity.  The report suggested actions to mitigate the situation, including  (1) amending the act to provide the Board greater enforcement authority  and capabilities; (2) collaborating with Customs and Border Protection to  revise the country of origin marking regulations to remove exceptions and  require that Indian-style jewelry items be indelibly marked; (3) working  with Congress or the Department of Commerce, or both, to allow the  Board to facilitate trademark registration for Indians, tribes, and arts and  crafts organizations; and (4) seeking civil penalties for misrepresentation  before seeking criminal penalties.
section_title: The Size of the Indian Arts and Crafts Market and the Extent of Misrepresentation Are Unknown
paragraphs: The actual size of the Indian arts and crafts market, and extent of  misrepresentation that is occurring, are unknown, because existing  estimates are outdated, limited in scope, or anecdotal and no national  sources contain the data necessary to make reliable estimates. Conducting  a comprehensive study to estimate the size of the market and level of  misrepresentation would be complex and costly and may not provide  reliable results.
subsections: section_title: Existing Estimates of Market Size and Misrepresentation Are Outdated, Limited in Scope, or Anecdotal
paragraphs: Instead of exact information, descriptions of the size of the Indian arts and  crafts market and extent of misrepresentation are based largely on  estimates prepared by various federal and state entities. However, we  found that these estimates are outdated and unreliable. For example, the  most recent and relevant national estimates were provided in a 1985  Department of Commerce study. The study estimated gross sales of  $400 million to $800 million annually for the Indian arts and crafts industry  and that 10 to 20 percent of the market is misrepresented. Our analysis of  the methodology used to produce the study, however, found that these  estimates are not only outdated but also unreliable. Specifically, a primary  contributor to the study told us that the estimates were based on “guesses”  from industry experts, not data collected from a survey or other  systematic data collection technique and can therefore be considered only  as opinions. Nevertheless, these estimates have been referred to  repeatedly in other reports and documents on the topic. For example,  Interior’s 2005 Inspector General report cites the Department of  Commerce estimate of $400 million to $800 million in annual gross sales  for the industry. In addition, a fact sheet put out by the Board states that  the Indian arts and crafts industry has $1 billion in gross sales annually,  which, according to a Board official, is based on the Department of  Commerce’s 1985 estimate adjusted for inflation.
Similarly, state and local studies that have described the arts and crafts  markets in specific locations are also limited in their scope and  methodology, making them unusable for estimating the size of the national  Indian arts and crafts market or the extent of misrepresentation. For  example, in 2001 the Alaska State Council on the Arts commissioned a  private research company to study Alaska’s arts industry. The study  estimated that Alaska artists’ income totaled about $20 million in 2001. Our  review of the methodology and discussion with a primary contributor,  however, found that the estimate is for the entire Alaska arts market and  that no specific data were collected on the Alaska Native arts market.  Therefore, in addition to being outdated, this study cannot be used to  estimate either the Alaska Native arts market or extrapolated to estimate  the national arts and crafts market. Similarly, the University of New  Mexico’s Bureau of Business and Economic Research issued a report in  2004 estimating that the arts and cultural industry and cultural tourism in  Santa Fe County generated approximately $1 billion in revenues in 2002.  Again, our review of the report’s methodology and discussion with a  primary contributor found that the report does not estimate revenue for  Indian artists alone—rather, it represents the entire arts and cultural  industry and cultural tourism in Santa Fe County—and therefore is not  useful for characterizing the local or national market for Indian arts and  crafts.
Many Indian artists, agency officials, and others with whom we spoke who  have knowledge of the national, state, and local Indian arts and crafts  markets offered anecdotal estimates of the size of the Indian arts and  crafts market and the extent of misrepresentation but generally could not  provide reliable support for their estimates. For example, we spoke with  Indian artists in Alaska, Illinois, New Mexico, Oklahoma, and Washington  who told us that non-Indian artists representing themselves as Indian  artists and marketing their goods as such was a widespread problem with  a significant value in sales, but this information was based largely on their  observations and personal experiences and not corroborated with reliable  documentation or other support. Similarly, a New Mexico Assistant  Attorney General told us that he thought misrepresentation was a  multimillion-dollar problem in New Mexico, but he had no data to support  his estimate. An official from the Indian Arts and Crafts Association  provided an anecdotal estimate of revenue for select vendors from the  association’s market event but could not document sales for the entire  market or reliably estimate the extent of misrepresentation. While these  estimates were informed by personal experiences, the lack of  documentary support for the estimates makes it impossible to  independently replicate the estimates and verify and validate their  reliability.
section_title: National Data Sources Do Not Track Data on Indian Arts and Crafts That Could Be Used to Determine Market Size or Extent of Misrepresentation
paragraphs: No national database specifically tracks Indian arts and crafts sales or  misrepresentation. Consequently, we examined various national data  sources to determine if the information they contain could be used to  estimate these characteristics. We found that because these data sources  were designed for other purposes and not intended to track the size of the  Indian arts and crafts market or extent of misrepresentation, the  information they contain is not specific or comprehensive enough to be  used for that purpose. For example, the Department of Commerce’s  Bureau of Economic Analysis maintains national data on purchases of  various categories of goods. The data include a category for jewelry  purchases, but they do not separate out a specific category for Indian-style  jewelry or have the level of detail that would help distinguish such jewelry  from other types of jewelry. Likewise, the International Trade Commission  maintains a database tracking imported goods by various categories. This  database includes a category for imported jewelry with semiprecious  stones valued at more than $40 per article but contains no additional detail  that could be used to determine which items, if any, are Indian-style. Both  of these databases also contain information on other categories of goods  that may or may not include Indian arts and crafts, but it is not possible to  specifically identify those items from the data collected.
We also found that information specifically collected about Indian arts and  crafts was not comprehensive or detailed enough to determine the size of  the market or extent of misrepresentation. For example, the Board  maintains a registry of about 350 Indian-owned and -operated businesses  but told us that this list represents only a small number of sellers who  choose to register with the Board and excludes other categories of sellers,  such as non-Indian wholesalers and non-Indian galleries offering Indian art  and craftwork. Similarly, the Indian Arts and Crafts Association  maintains a directory of 500 to 600 artists, retailers, and wholesalers, but,  again, it is not a comprehensive list of Indian arts and crafts sellers, and it  contains only association members who choose to be listed. Moreover,  neither of these organizations collects information on the sales of goods  by these sellers. Regarding misrepresentation, the Board maintains a  database of complaints of alleged violations of the Indian Arts and Crafts  Act. Although this database contains information describing individual  instances of alleged misrepresentation, it is not a comprehensive listing of  all incidents of misrepresentation that have occurred; rather, it represents  only instances where an individual recognized a potential violation and  made the effort to report it.
section_title: Conducting a Study to Accurately Estimate the Size of the Market and Extent of Misrepresentation Would Be Challenging
paragraphs: In the absence of reliable estimates or sufficiently detailed national data,  accurately estimating the size of the Indian arts and crafts market would  require a completely original study. But our analysis and the opinions of  experts suggest that such a study would be complex and costly and may  not produce reliable estimates. Experts we spoke with who had conducted  state and local surveys suggested that such a study should include one or  more surveys of individuals and businesses in the Indian arts and crafts  market to estimate the size of the market. For example, one survey could  request data from Indian artists about their income from the sales of arts  and crafts, and another survey could request sales information from  businesses and establishments that sell Indian and Indian-style goods.  However, these experts agreed that it would take substantial resources to  conduct such surveys and that the usefulness of the results may be limited  because of various challenges, such as:    Artists may not maintain detailed income records and may not be able to  reliably estimate, or may not want to provide, their annual income from  the sale of their art.
A store selling Indian-style and other goods may not be able to accurately  estimate what proportion of total sales comes from Indian-style goods.
A comprehensive list of Indian artists and establishments that sell Indian  and Indian-style arts and crafts does not exist.
The meanings of key terms, such as “Indian-style,” are not universally  agreed upon, and a survey to identify all of the goods that make up the  market using such terms may be flawed. For example, with regard to the  term “Indian-style,” one respondent may think they must include all  jewelry with turquoise stones, while another respondent may consider  only turquoise jewelry with recognizable tribal patterns or markings as  being “Indian-style.”
A study on the extent of misrepresentation in the market would be  difficult because it would rely largely on self-reporting of illegal activity by  violators of the Indian Arts and Crafts Act.
section_title: To Curtail Misrepresentation of Indian Arts and Crafts, Agencies Have Relied on Educational Efforts over Law Enforcement Actions, but Fundamental Challenges Exist
paragraphs: Federal and state agencies have relied on educational efforts more than  law enforcement actions to curtail misrepresentation of Indian arts and  crafts, but these efforts are hampered by fundamental challenges, such as  ignorance of the law, competing law enforcement priorities, the high cost  of pursuing legal actions, and limitations on the enforcement of customs  regulations.
subsections: section_title: Interior Prefers to Seek Voluntary Compliance with the Indian Arts and Crafts Act over Law Enforcement Actions
paragraphs: The Board maintains a computerized database of the complaints it  receives of alleged violations of the act and tracks subsequent actions by  its staff or by law enforcement agencies to resolve complaints. According  to the database, from fiscal year 2006 through fiscal year 2010, the Board  received 649 complaints of alleged violations. The Board’s investigation  of these 649 complaints identified apparent violations of federal or state  laws in 23 percent of the complaints—148 violations of the Indian Arts and  Crafts Act and 2 of state law, but for 61 percent of the complaints— 395 of the 649—the Board, upon investigation, identified no violation of  the federal law or could not make a determination; for example, according  to Board officials, anonymous complaints sometimes do not provide  sufficient information to identify a violation. Most of the allegations  during these 5 years—49 percent—involved retail store sales, followed by  Internet sales, which made up 33 percent. The remaining 18 percent  involved an assortment of venues such as powwows, art markets, and  individual sellers (see app. I).
According to its Director, the Board’s preferred approach to investigating an  apparent violation of the act is to send an educational or warning letter to  the alleged offender to obtain voluntary compliance. Our analysis of  information from the Board’s complaint files from fiscal year 2006 through  fiscal year 2010 found that 102 educational and 188 warning letters were  sent to potential offenders in response to 290 of 649 complaints, or about  45 percent. Educational letters are generalized to businesses that sell Indian  arts and crafts, outlining the act’s requirements for the sale of Indian arts  and crafts, defining penalties, and identifying sources for additional  information on the act. Warning letters that are sent to sellers regarding  specific items they are offering for sale as Indian products include  information on the act’s requirements and penalties, advise the sellers to  cease any representations that potentially violate the act, and suggest  alternative descriptive wording that the sellers could use to avoid violating  the act. The Director told us that this approach is practical, given the  Board’s limited staff and resources, and also effective, often resulting in the  seller’s agreeing to comply or seeking additional information on the act.
As indicated in its database, after the Board completed its own  investigation of the complaints, from fiscal year 2006 through fiscal year  2010, it referred 117 complaints of apparent violations to law enforcement  agencies for further investigation. According to the Board’s Director,  however, limited investigative resources and turnover of investigators  hampered these efforts. For example, while the 1990 act directed the  Board to refer complaints to the FBI for investigation, the FBI generally  declined referrals because of other priorities. Consequently, in  August 2007, Interior entered into a memorandum of understanding with  the Department of Justice, which delegated authority to Interior to  investigate alleged violations of the act. The Board entered into a  reimbursable agreement with the Bureau of Indian Affairs for the services  of an investigator in September 2007, but the detail lasted only until  February 2008. Between June 2008 and January 2010, the Board received  investigative assistance on specific complaints or on a part-time basis from  three different National Park Service law enforcement personnel. The  National Park Service subsequently hired one of the investigators to work  full-time for the Board in January 2010, but that investigator suddenly  passed away in March 2010. Effective May 2010, the Board had a  reimbursable support agreement with the National Park Service for a full- time agent dedicated to investigating Indian Arts and Crafts Act cases in  collaboration with Board staff. According to the Director, the Board has  been successful in obtaining cooperation from other agencies to  investigate complaints, but the lack of continuity and resources for law  enforcement investigative assistance has been a significant challenge to  developing complaints into criminal cases for prosecution. Consequently,  following the 2010 act amendments allowing any federal law enforcement  officer to investigate alleged violations, the Board is currently awaiting  Interior’s approval to hire an investigator as a Board employee for greater  program continuity and success.
Although the Board referred 117 complaints for further investigation from  fiscal year 2006 through fiscal year 2010, none of these referrals led to a  case being filed under the act. According to Department of Justice data  from fiscal year 2006 through fiscal year 2010, no federal prosecutions  were initiated under the act. More broadly, since 1990, only five federal  cases have been filed under the act (see app. II), the first in 1999 and the  last in 2005. For the case filed in 2005, an FBI special agent investigated a  2004 complaint referred by the Board regarding an individual in  New Mexico selling imported weavings as Navajo made. With assistance  from Board staff, a National Park Service agent, and another FBI agent,  the case was prosecuted in federal court, resulting in a guilty plea and  sentencing of the defendant in December 2007 to 5 years probation and an  order to pay the victims restitution totaling more than $30,000.
To increase investigation and prosecution of complaints—whether under  the act or under state laws—the Board has partnered with some of the  12 states that have their own Indian arts and crafts laws to share  complaint information and provide other assistance. According to the  Board’s complaint database, 248 of the 649 complaints—about  38 percent—from fiscal year 2006 through fiscal year 2010 came from  states that have their own state Indian arts and crafts laws. According to  the Director, the Board has contacted many of these states’ offices of  attorneys general to offer information, assistance, and coordination on any  investigations or prosecutions of misrepresentation cases. In recent years,  the Board has had the most success collaborating with New Mexico’s  Attorney General, beginning with a 2004 investigation initiated by the  Board, which was subsequently handed off for successful prosecution  under the state law prohibiting fraud, resulting in a guilty verdict, sentence  of probation, and an order to pay a fine and restitution. A subsequent  2007 meeting in New Mexico—including the Board’s Director, the State  Attorney General and staff, the U.S. Attorney for the District of New  Mexico, an FBI agent, and representatives from four Interior law  enforcement offices—led to further collaboration, with the Board  providing support and assistance to obtain consent decrees in 2009— agreements to not misrepresent merchandise and to pay restitution and a  civil penalty—under the state Indian Arts and Crafts Sales law for  misrepresenting Indian jewelry in two stores in Santa Fe, New Mexico.  The New Mexico Assistant Attorney General who prosecuted these cases  told us that the Board’s support, particularly in assisting sting operations  at the stores, was instrumental in the investigations’ success. While  New Mexico has pursued cases under its law, the offices of attorney  general in seven other states that we contacted with Indian arts and crafts  laws could not provide any information on cases investigated or  prosecuted under those laws in recent years.
Besides the limited federal and state efforts to enforce the Indian Arts and  Crafts Act and related state laws, we also identified one arts and crafts  organization that has brought numerous civil lawsuits under the act. This  organization—Native American Arts, Inc.—is owned and operated by an  Indian tribal member and sells authentic Indian arts and crafts through a  retail store and the Internet. Finding it difficult to compete with stores that  were misrepresenting unauthentic goods as real Indian arts and crafts,  Native American Arts, Inc., began filing lawsuits in 1998 for violations of  the act and since then, according to the attorney for the organization, has  filed about 80 lawsuits in total. The attorney told us that the lawsuits have  been highly successful, obtaining injunctions in almost every case to  prevent the defendants from violating the act and requiring them to  include a disclaimer on imitation products or in their advertising, stating  that their products are not made by Indians and are not Indian products  under the act. Furthermore, the attorney stated that the defendants have  generally complied with the injunctions and that in only two cases follow- up action was needed to obtain compliance.
section_title: Board’s Educational Efforts Help Promote Awareness and Understanding of the Act
paragraphs: As mentioned earlier, the Board and its federal, state, and industry  partners have emphasized educational activities for buyers and sellers to  increase awareness of the act and help reduce apparent violations and  complaints. For example, educational activities undertaken by the Board  have included the following:    Publishing brochures to educate sellers and buyers on the act and to help  buyers identify authentic Indian arts and crafts, such as “How to Buy  Genuine American Indian Arts and Crafts,” produced in collaboration with  the Federal Trade Commission. The Board has also collaboratively  produced brochures tailored for specific states that have state arts and  crafts laws, including Alaska, Arizona, New Mexico, and South Dakota,  and specifically for items made of turquoise.
Collaborating with the Federal Trade Commission and six states to  survey Web sites that market art or craftwork potentially covered under  the act and sending operators educational materials on compliance with  both the Indian Arts and Crafts Act and the Federal Trade Commission  Act, as amended. In addition, the Board worked with a prominent online  sales and auction Web site to compose an educational message to educate  online Indian art sellers about the act’s requirements.
Sending reminder letters to business owners in the Board’s Source  Directory of American Indian and Alaska Native Owned and Operated  Arts and Crafts Businesses about compliance with the act. The Board  also produces and distributes wall calendars and shop posters to display  information about the act where Indian goods are sold.
Operating informational booths at Indian conventions and arts and crafts  shows. For example, from 2005 through 2009, the Board hosted a booth  with the Federal Trade Commission and the Alaska State Attorney  General’s Consumer Protection Unit at the annual Alaska Federation of  Natives Convention.
Placing educational advertisements in Indian art, state tourism, and  airline in-flight magazines.
State and local programs also help to increase awareness of authentic  Indian arts and crafts on a local or regional level and, to a certain extent,  help “self-police” the market. Examples include the following:    The Alaska State Council on the Arts’ Silver Hand Permit Program has a  mission to promote authentic Alaska Native art made in the state  exclusively by individual Alaska Native artists. Participating artists must  be (1) residents of Alaska, (2) Alaska Natives who can verify Alaska Native  tribal enrollment, (3) 18 years of age or older, and (4) producing art  exclusively in the state. Participating artists receive tags or stickers with  the Silver Hand seal of authenticity for marking arts and crafts that are  authentic Alaska Native-made arts and crafts. According to the Director of  the Silver Hand program, about one-third of Alaska Native artists are  enrolled in the program.
New Mexico’s Portal Program at the Palace of the Governors in Santa Fe  is a self-policing Indian arts and crafts group that provides free space for  the sale of handmade Indian goods in front of the Palace of Governors.
The Portal program participants we spoke with told us that it has about  4,000 total members, with about 500 who participate actively on a regular  basis. Governed by a 10-person committee elected annually from among  program participants, the program requires Indian artists to adhere to  traditional materials and processes, display registration cards that clearly  show their individual trademark(s), and use their trademark(s) on all  wares. According to committee members, these standards are strictly  enforced and are among the most stringent of any Indian arts and crafts  organization. The committee monitors Portal sellers, spot-checks goods  for sale, and terminates membership of any artist found to be in violation  of Portal rules and regulations.
section_title: A Variety of Challenges Exist to Curtailing Misrepresentation
paragraphs: Even with its partnerships and educational and other outreach efforts, the  Board acknowledges that a number of challenges exist to curtailing  misrepresentation of Indian arts and crafts. Specifically, ignorance of the  Indian Arts and Crafts Act remains one of the most significant challenges.  According to the Board’s Director, the continuous education of sellers,  consumers, and law enforcement officials is key to curtailing  misrepresentation and improving compliance with the act. With sellers,  noncompliance can be caused by a lack of awareness of the act, and the  Board has learned from sending out educational and warning letters that  sellers are often willing to comply after they are better informed about the  act. In addition, some sellers may be aware of the act but unaware of the  Board’s role. For example, one seller we met with knew about the act but  said she was unfamiliar with the Board until we pointed out that the  brochures about the act that she had on hand were produced by the  Board. Consequently, while sellers may be aware of the act, they may not  be aware that the Board is available to respond to complaints of violations  or to help clarify the act and offer other support.
With regard to consumers, the Board’s brochures include information on  how consumers can identify genuine arts and crafts and avoid imitations— for example, by asking specific questions about the artist and how the  good was made—but ignorance of the act can cause consumers to  unwittingly support the market for imitation and potentially  misrepresented Indian-style arts and crafts. For example, Indian artists in  Santa Fe’s Portal program with whom we spoke told us that while  members of the program must adhere to strict authenticity, criteria, buyers  are drawn across the street to the town square, where sellers do not  adhere to those same criteria and may imply that their imitation goods are  Indian products while significantly undercutting the prices of authentic  goods. Portal members told us that, if consumers were better informed  about cultural significance and quality, they might feel a greater obligation  to buy authentic arts and crafts—even if they cost a bit more—and avoid  buying imitations. Other Indian artists mentioned examples of what they  consider to be deliberate confusion of consumers by sellers, such as  galleries labeling art created by non-Indians that is clearly inspired by  Northwest Indian art as “Northwestern Art”; such labeling avoids explicit  misrepresentation but fails to inform a buyer that the art was not created  by an Indian artist. Indian artists also mentioned that non-Indian artists  will take on Indian-sounding names to create the illusion of authenticity.  Better-informed consumers could ask the questions necessary to avoid  such ploys.
With regard to increasing awareness of the act within the law enforcement  community, the Board has provided training in recent years via numerous  conferences and workshops including U.S. Attorneys and Interior, FBI,  tribal, and state law enforcement personnel, and it is planning future  training for federal law enforcement officers. Nevertheless, an Interior law  enforcement official told us that, although such exposure to the act may  be helpful, most Interior law enforcement personnel are trained and  focused on specific issues affecting the land units they are assigned to and  are unlikely to pursue violations of the act, particularly if they involve  investigation outside the borders of that unit.
According to the Board’s Director, in addition to ignorance of the Indian  Arts and Crafts Act, another significant challenge to curtailing  misrepresentation is that other crimes have higher law enforcement  priority. After the 1990 amendments charged the FBI with investigative  duties, the Board learned through experience that enforcing the act was  not high among the FBI’s competing priorities. An FBI official confirmed  that the FBI’s involvement in the investigation of act violations has always  been infrequent, and no change to this situation is foreseen, given the  FBI’s primary focus on violent crimes. According to the Board’s Director,  the delegation of investigatory authority from the FBI and reliance on law  enforcement officers from other Interior agencies have posed additional  challenges for the Board. The Board has had to make requests through  other agencies within Interior for support to enforce the act, and, although  a National Park Service investigator now works full-time for the Board,  support from Interior law enforcement has been sporadic over time.  Furthermore, according to an Interior law enforcement official, it is  challenging to have only one dedicated investigator conducting multiple  investigations at once, or even a single broad or complex investigation.  Under National Park Service policies and procedures, the investigator can  be assisted by investigators in other geographic areas for interviews or  investigative work if needed. But the ideal enforcement scenario,  according to the Interior law enforcement official, would be a critical mass  of 8 to 10 investigators working with the Board and dedicated to  investigating potential violations of the act. It is difficult, however, to  devote additional resources to enforcing the act within Interior because of  the many priorities already competing within each of Interior’s seven law  enforcement groups. According to the Director, the Board’s planned  hiring of an investigator as an employee will allow the Board to recruit and  employ an individual with uniquely suited talents and retain that individual  to gain experience and skills specifically related to enforcing the Indian  Arts and Crafts Act.
Another challenge to prosecuting violations of the act that have been  investigated is the capacity of U.S. Attorneys’ Offices to adjudicate the  alleged violations of the act. According to an Interior law enforcement  official, after the investigator gathers evidence, the case must be presented  to the appropriate U.S. Attorneys to determine if prosecution or further  investigation should be pursued. The official told us that the U.S.  Attorneys’ Offices are overwhelmed with cases, and those involving  violations of the act tend to receive low priority for federal prosecution. A  Bureau of Indian Affairs agent also told us that because so few Indian Arts  and Crafts Act cases have gone through the courts, little case history  exists for the U.S. Attorneys’ Offices to look at for guidance on how to put  together a winning case. In addition, U.S. Attorneys generally require that  the case be “large scale,” meaning involving either a large dollar amount or  a network of shops implicated in misrepresentation; putting together such  a large-scale case is both resource and time intensive.
The owner and attorney for Native American Arts, Inc., told us that in their  opinion civil action under the act is more effective than criminal  prosecution to curtail misrepresentation. The act provides uniformity  under the law, and the statutory and triple damages provisions are  effective deterrents. They have observed that, in part because of their  successful lawsuits, companies they have not yet sued have preemptively  placed disclaimers on their products to prevent a lawsuit. Nevertheless,  neither of them was aware of any other Indian arts organizations, tribes, or  individuals bringing such suits. The challenges to bringing suits are that  they are costly and time-consuming—investigating cases and developing  the evidence to meet legal requirements for civil cases, in their experience,  make for an expensive and lengthy process. The cases can also take a long  time to resolve if they are defended vigorously, and because this area of  law is little developed, appeals may be required to get a positive outcome.  In their opinion, most Indian artists do not have the resources or attorney  access needed to be successful with this approach.
As reported by Interior’s Office of Inspector General in 2005 and  confirmed in our discussions with the Board’s Director, other federal and  state officials, and Indian artists, it is generally agreed that a significant  challenge to curtailing misrepresentation is the limited enforcement of  Customs and Border Protection regulations for imported Native American- style goods. The regulations require that Native American-style jewelry be  indelibly marked with the country of origin by cutting, die-sinking,  engraving, stamping, or some other permanent method on the clasp, in  some other conspicuous location, or on a metal or plastic tag permanently  attached to the jewelry, unless an exception applies. The Inspector  General report noted, however, that the exceptions may allow importers  to use adhesive labels, string tags, or to simply mark a jewelry container  instead of the jewelry itself, thus allowing unmarked goods to be  misrepresented at the point of sale. According to Customs and Border  Protection officials, if an exception had been requested for Native  American-style imports, a ruling would appear for that request in the  Customs Ruling Online Search System. Customs and Border Protection  officials identified two rulings—one about Native American-style jewelry  and another about Native American-style arts and crafts—written in  response to a request from importers regarding the country of origin  marking of their products. The regulation could be amended to remove  any exceptions, but removal would not likely increase enforcement,  according to Customs and Border Protection officials. Customs and  Border Protection also does not visit stores to determine if country of  origin stickers or tags are being removed from imported goods, but it  does have a Web form for “e-allegations,” which could be used by  concerned artists or consumers to report such violations for follow-up by  an enforcement team.
section_title: Some Potential Options for Protecting Indian Traditional Knowledge and Cultural Expression Exist
paragraphs: U.S. federal and state laws protecting intellectual property do not  explicitly include Indian traditional knowledge and cultural expression  and therefore do not provide adequate protection from misappropriation  or distortion. Some international frameworks or guiding principles exist  for protecting traditional knowledge and cultural expressions, but these  rely on individual countries taking steps to implement them. To date, the  United States has not taken any such steps. Other countries have taken  actions to explicitly protect the intangible intellectual property of their  indigenous groups, and these efforts provide options for the United States  to consider.
subsections: section_title: Existing U.S. Laws Provide Little Protection for Traditional Knowledge and Cultural Expressions
paragraphs: Traditional knowledge and cultural expressions may be vulnerable to  misappropriation and distortion because existing U.S. federal and state  laws do not explicitly protect Indian traditional knowledge and cultural  expressions. For example, Indian traditional knowledge and cultural  expressions that have been handed down for generations are not generally  eligible for copyright protection because they are not original and usually  not fixed in any tangible medium of expression. U.S. copyright law  protects original works of authorship fixed in any tangible medium of  expression. When such a work is copyrighted, the creator receives the  exclusive right to reproduce, publish, sell, or distribute the work for a  certain period of time. Indian traditional knowledge and many cultural  expressions, such as songs, dance, and origin stories, are passed orally  from generation to generation and are not fixed in any tangible medium.  Moreover, much of Indian traditional knowledge and cultural expression is  not original because it is a product of shared cultural understanding  spanning thousands of years. For example, the traditional dances and  songs that a tribe has performed for generations cannot be copyrighted  because they are not original. Therefore, the tribe cannot sue for copyright  infringement when others representing themselves as tribal members  perform the traditional dances and songs. Similarly, many tribes have an  origin story that has been part of their cultural heritage for thousands of  years but has only been transmitted orally. If the tribe has not published  the story, it is not copyrighted, and the tribe cannot sue for copyright  infringement when someone else publishes the story.
U.S. trademark law can provide some protection for Indian traditional  knowledge and cultural expression, but its applicability is limited. A  trademark is a distinctive sign or indicator—such as a word, name,  symbol, design, image, or any combination thereof—used by a person or  organization to uniquely identify the source of its products or services and  to distinguish them from those of other individuals or entities. Because  trademarks are used to protect manufacturers, merchants, and consumers,  traditional knowledge and cultural expressions not used in commercial  transactions are still vulnerable to misappropriation or misrepresentation.  For example, the sun symbol—a crimson circle with lines extending  outward in each cardinal direction—is a religious symbol for the Zia  Pueblo, but to pursue a trademark infringement case against those who  use it without authorization, the Pueblo would have to use the symbol in  commercial transactions.
The establishment of the Patent and Trademark Office tribal insignia  database in 2001 provides tribes with an opportunity to prevent merchants  or manufacturers from registering marks that would falsely suggest a  connection with the tribe. But inclusion of an insignia in the database does  not provide the tribe with the benefit of trademark registration. Instead,  tribes submit their flag, coat of arms, or other emblem or device adopted  by tribal resolution for inclusion in the database so that the Patent and  Trademark Office can use it when examining applications for trademark  registration. If a mark that an applicant wishes to register as a trademark  resembles the insignia of an Indian tribe, the Patent and Trademark Office  might conclude that the mark would suggest a false connection with the  tribe and reject the application. For example, the Port Gamble Indian  Community in the state of Washington submitted its tribal insignia—an  orca whale depicted in the traditional colors, shapes, and designs of  Northwest Coast Indian art—for inclusion in the tribal insignia database. If  a company submitted a trademark application for its logo that depicted  such an orca whale, the Patent and Trademark Office might conclude that  the logo falsely suggested a connection to the tribe and deny the  company’s trademark application.
According to Patent and Trademark Office officials, various federal and  state laws—including invasion-of-privacy and trade secrets laws—protect  the moral rights of artists and performers that are recognized in two  international treaties. Specifically, the Berne Convention for the  Protection of Literary and Artistic Works, which includes productions in  literary and artistic domains, whatever the mode or form of its expression,  and the World Intellectual Property Organization Performances and  Phonograms Treaty, which applies to performers of literary or artistic  works or expressions of folklore and producers of sound recordings of  those performances, grant moral rights to artists, performers, and  producers. As articulated in these treaties, moral rights are the right of  attribution (the right to claim authorship of the work or performance) and  the right of integrity (the right to object to any distortion, mutilation or  other modification of, or other derogatory action in relation to the work or  performance) that would be prejudicial to the artist or performer’s honor  or reputation.
Most states allow lawsuits to be brought for invasion of the right of  privacy when publicity unreasonably places an individual in a false light  before the public. For example, in the mid-1980s the Pueblo of Santo  Domingo sued a newspaper for invasion of privacy because the newspaper  published photographs of a ceremonial dance that were taken despite a  tribal ban on photography. However, some legal experts have expressed  skepticism about using lawsuits for invasion of privacy in response to  misrepresentation or misappropriation of traditional knowledge and  cultural expressions. The skepticism arises in part because the tribe would  have to show how a nontribal member performing traditional tribal dances  or using copies of traditional masks and performing traditional ceremonies  is unreasonable and highly objectionable publicity that attributes to the  tribe false characteristics, conduct, or beliefs and thereby places the tribe  in a false position before the public.
Finally, according to Patent and Trademark Office officials, state trade  secrets laws would apply equally to Indian traditional knowledge and  cultural expressions if they were kept secret and had some economic  value. State trade secrets laws provide a means for redress when  information that (1) derives independent economic value, actual or  potential, from not being generally known to, and not being readily  ascertainable by proper means by, other persons who can obtain  economic value from its disclosure or use and (2) is the subject of efforts  that are reasonable under the circumstances to maintain its secrecy, is  misappropriated. However, Patent and Trademark Office officials also  noted that they were not aware of any cases alleging that misappropriation  of traditional knowledge and cultural expressions violated state trade  secrets laws. Some legal experts are also skeptical about the use of trade  secrets law to prevent misappropriation of traditional knowledge and  cultural expressions.
section_title: International Frameworks Exist or Are Under Development to Provide Guidance for Nations Interested in Protecting the Intellectual Property of Indigenous Peoples
paragraphs: Existing international frameworks offer protections for traditional  knowledge, but the United States has not implemented them to date. A  Patent and Trademark Office official told us that rather than using U.S.  intellectual property laws to protect traditional knowledge and cultural  expressions, other actions should be taken to safeguard them. For  example, the United Nations Educational, Scientific and Cultural  Organization’s Convention for the Safeguarding of Intangible Cultural  Heritage requires parties to ensure that intangible cultural heritage is  safeguarded, including its protection and promotion, through  identification, inventory, and other measures. However, the United States  is not a party to this convention, although the collections of the American  Folklife Center of the Library of Congress—which maintains an archive of  creative works and records representing or illustrating some aspect of  American folklife—include Native American songs and dances.  Implementing this international convention could help safeguard  traditional knowledge and cultural expressions, according to an expert on  traditional knowledge and intellectual property law, but safeguarding  would not provide the legal protection that can only be afforded by  intellectual property law.
Similarly, the U.N. Declaration on the Rights of Indigenous Peoples,  adopted by the United Nations General Assembly on September 13, 2007,  includes provisions on protecting traditional knowledge and cultural  expressions. The declaration proclaims several standards of achievement  for countries to pursue, including that indigenous people have the right to  maintain, control, protect, and develop their intellectual property over  their cultural heritage, traditional knowledge, and traditional cultural  expression, and that countries should take effective measures to recognize  and protect the exercise of these rights. The United States originally  voted against the resolution but later expressed its support for the  declaration on December 16, 2010. At this time, it is not clear what policy  actions, if any, the federal government will undertake to implement the  Declaration on the Rights of Indigenous Peoples’ standards of  achievement in the United States.
Currently, negotiations are under way at the World Intellectual Property  Organization on an instrument that, once implemented by countries,  would help protect the intangible intellectual property of indigenous  peoples. In response to the perceived and growing concern by indigenous  people worldwide that misappropriation and unfair misuse of traditional  knowledge and cultural heritage are increasing, the World Intellectual  Property Organization in 2000 established the Intergovernmental  Committee on Intellectual Property and Genetic Resources, Traditional  Knowledge and Folklore. The Intergovernmental Committee’s mandate  calls on member states to reach agreement on one or more international  legal instrument(s), which will ensure the protection of (1) traditional  knowledge, (2) traditional cultural expressions and expressions of  folklore, and (3) genetic resources. Expert working group discussions are  being conducted for each of the three topic areas. Of these three areas, the  most work has been done on an instrument to protect traditional cultural  expressions and folklore, but, according to Patent and Trademark Office  officials, member states are still far from reaching agreement on a final  text. In addition, member states also have not reached agreement on  whether the instrument will be a declaration, a model law for member  states, or a binding international treaty. After agreement is reached on the  text and type of instrument, each member state will have to take actions to  implement the instrument. According to Patent and Trademark Office  officials, it is not clear that the United States will be able to agree to any  instrument because protection of folklore raises significant concerns for  the public domain and for stakeholders such as libraries and the motion  picture industry.
section_title: Other Countries Have Undertaken Protection Actions That Provide Options for Consideration
paragraphs: Options for protecting traditional knowledge and cultural expressions are  also found in the experiences of other countries that have established or  attempted to establish laws and programs to address the issue. For  example, in Australia, state and federal Cultural Affairs Ministers asked a  nongovernmental organization to work on developing resources to  address the needs of the indigenous arts community. In response, the Arts  Law Centre of Australia developed an indigenous intellectual property  “toolkit” to promote closer links between business and indigenous  communities; raise awareness among indigenous communities,  consumers, and commercial operators; and enhance coordination of  existing networks of indigenous and nonindigenous organizations in  relation to intellectual property matters. As part of the toolkit, the center  launched a Web site with information on various intellectual property  issues, including contracts, copyright, licensing, and moral rights for  artists; recorded short messages in indigenous languages about various  intellectual property issues, to air on the radio; and provided information  for consumers and commercial operators. In addition, according to an Arts  Law Centre official, until 2010, the center also provided direct legal  services to indigenous artists who needed assistance with intellectual  property, among other issues, but it stopped providing such services  because it lacked funding for these time-consuming efforts.
Even with the 2010 launch of the intellectual property toolkit, the Arts Law  Centre official acknowledged that intellectual property and moral rights  laws may not sufficiently protect indigenous traditional knowledge and  cultural expressions. For example, when an art gallery erected a sculpture  of Wandijina, the creation spirit sacred to three aboriginal groups in  Australia, the groups were unable to use intellectual property laws to  prevent the display of the sculpture, because it was inspired by the idea of  the creation spirit, rather than copied from a tangible image. According to  an official from the Arts Law Centre, the Australian government may, in  the future, consider either amending the intellectual property laws or  creating unique laws to address such issues.
In contrast to Australia’s education and outreach approach, Panama,  Nigeria, and New Zealand have provided specific protections for  traditional knowledge and cultural expressions in their national laws. In  2000, Panama passed a law specifically to protect the collective rights of  indigenous communities’ traditional knowledge and cultural expressions.  The law protects the collective intellectual property rights and traditional  knowledge of indigenous peoples in their creations by allowing traditional  indigenous authorities or the congressional bodies that rule indigenous  autonomous territories to register their collective rights with a  government office and prohibiting unauthorized third parties from holding  exclusive rights in indigenous traditional knowledge and cultural  expressions. But the law does not address scenarios where a member of  the indigenous group, as opposed to a third party, violates a registered  collective right. According to a legal expert, as of 2005, only one of the  seven indigenous groups in Panama had registered collective rights; the  extent to which others will do so is unknown.
In Nigeria, when expressions of folklore are made either for commercial  purposes or outside their traditional or customary context, the country’s  copyright act protects them against (1) reproduction; (2) communication  to the public by performance, broadcasting, distribution by cable or other  means; and (3) adaptations, translations, and other transformations. The  right to authorize the reproduction, communication, and adaptation of  these expressions of folklore is vested in the Nigerian Copyright  Commission. A traditional knowledge and intellectual property law expert  we spoke with, however, does not believe that the law has ever been used.  Furthermore, the Nigerian Copyright Commission states on its Web site  that it is seeking financial sponsorship for a project to document Nigerian  indigenous folklore. According to the commission’s Web site, this project  is a prelude to effective administration and enforcement of the provision  listed in the copyright act.
New Zealand has also taken steps to protect the intangible intellectual  property of its indigenous groups. Specifically, the Trade Marks Act of  2002 prohibits the Commissioner of Trade Marks from registering a  trademark when its use or registration would, “in the opinion of the  Commissioner, be likely to offend a significant section of the community,”  including New Zealand’s indigenous population. The law also requires the  Commissioner to establish a committee comprising those knowledgeable  about indigenous matters to advise the Commissioner on whether the  proposed use or registration of a trademark that is, or appears to be,  derivative of an indigenous sign, text, or image is, or is likely to be,  offensive to indigenous groups. In addition, the country’s Ministry of  Economic Development is examining the relationship between intellectual  property rights and traditional knowledge. After examining the  relationship, the ministry will develop options to address any problems  identified, hold consultations on those options, and then make policy  recommendations to the government.
section_title: Agency Comments
paragraphs: We provided a copy of our draft report to the Departments of Commerce,  Homeland Security, the Interior, and Justice for review and comment. In  their written responses, the Department of Commerce’s U.S. Patent and  Trademark Office and the Department of Homeland Security generally  agreed with the contents of the report and also provided technical  comments, which we incorporated into the report as appropriate.  Commerce’s and Homeland Security’s comments are presented in  appendices III and IV, respectively. The Departments of the Interior and  Justice provided technical comments, which we incorporated into the  report as appropriate.
We are sending copies of this report to the appropriate congressional  committees; the Secretaries of Commerce, Homeland Security, and the  Interior; the Attorney General of the United States; and other interested  parties. In addition, this report will be available at no charge on the GAO  Web site at http://www.gao.gov.
If you or your staff members have any questions about this report, please  contact me at (202) 512-3841 or mittala@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on the  last page of this report. GAO staff who made major contributions to this  report are listed in appendix V.
section_title: Appendix I: Misrepresentation Complaints Received by the Indian Arts and Crafts Board
paragraphs: As shown in table 1, the majority of complaints received by the Indian Arts  and Crafts Board involved retail establishments and online sales.
As shown in table 2, complaints were reported for a variety of arts and  craft types, with the majority of complaints involving flutes, a mixture of  arts and crafts, and jewelry. The number of flute complaints may not  represent the relative scale of flute misrepresentation: two individuals  submitted most of these complaints.
As shown in table 3, the majority of alleged violations of the Indian Arts  and Crafts Act occurred in states located in the western and southwestern  United States.
As shown in table 4, of the 12 states with laws regarding Indian arts and  crafts, Nebraska is the only one where no complaints were reported to the  Board during fiscal years 2006 to 2010.
section_title: Appendix II: Criminal Cases Brought under the Indian Arts and Crafts Act and Their Dispositions, Fiscal Years 1990 through 2010
subsections: section_title: United States v. Wayne Eagleboy, No. 5:98-MJ-00031 (D. S.D. May 3, 2000)
paragraphs: The defendant pleaded guilty to  violating the Bald and Golden Eagle  Protection Act and the other charges  were dismissed without prejudice.  The defendant was sentenced to  1 year probation.
United States v. Jerry Lee Boose,  No. 1:01-CR-20017  (E.D. Mich. Mar. 19, 2002)
The defendant pleaded guilty to the  mail fraud charge and was  sentenced to 13 months jail time.  The rest of the charges were  dismissed with prejudice.
United States v. Nader Pourhassan,  No. 2:00-CR-00229  (D. Utah Dec. 31, 2001)
The charges were dismissed with  prejudice.
United States v. Richard Tescher,  No. 3:01CR0168  (D. Alaska Jan. 1, 2005)
The charges were dismissed without  prejudice.
One count of wire fraud.
United States v. Rose Morris,  No. 1:05-CR-01378  (D. N.M. Dec. 5, 2007)
The defendant pleaded guilty and  was sentenced to 5 years probation.  “Without prejudice” means the federal government can charge the defendant again for the crimes.  “With prejudice” means the federal government cannot charge the defendant again.
section_title: Appendix III: Comments from the Department of Commerce
section_title: Appendix IV: Comments from the Department of Homeland Security
section_title: Appendix V: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Jeffery D. Malcolm, Assistant  Director; Pedro A. Almoguera; Paola Bobadilla; Mark A. Braza; Ellen W.  Chu; Brad C. Dobbins; Jeanette M. Soares; and Michelle Loutoo Wilson  made key contributions to this report.