Indian Arts And Crafts Disclaimer Page

SECTIONS 103,104, AND 105

THE INDIAN ARTS AND CRAFTS ACT OF 1990, P.L. 101-644

This overview is intended to provide a quick synopsis of how Sections 103 - 105 of the Act work in practice. It is not intended to supersede the language of the Act or the final implementing regulations. You should read this overview with the complete text of the Indian Arts and Crafts Act and the implementing regulations.

You should also keep in mind that criminal cases require a higher burden of proof than civil cases. Criminal cases must be proven beyond a reasonable doubt; civil cases require only a preponderance of the evidence.

Criminal
In order to successfully prosecute a criminal violation under the Act, the prosecution must prove that a person knowingly offered or displayed for sale or sold any good in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States. Section 103 of the Act designates the Indian Arts and Crafts Board (IACB) as an agency that may receive complaints of violations of 18 U.S.C. I 1 59 (amended by Section 104 of the Act) and authorizes the IACB to refer such complaints to the Federal Bureau of Investigation (FBI) for investigation. It also authorizes the IACB to recommend cases to the Attorney General of the United States for criminal prosecution. When IACB receives a written complaint of a criminal violation and documented evidence, (a) the IACB will carefully review and analyze the submitted material, and (b) the IACB will determine the strength of the case and whether to refer the case to the FBI for investigation. Once the FBI has investigated the referred criminal case and submitted an investigation (it) may recommend the case to the Attorney General of the United States for prosecution. In the case of a first conviction in a criminal case, as outlined in Section 104 of the Act - (a) An individual may be fined up to $250,000 or imprisoned up to five years, or both. (b) A person other than an individual, such as a corporation, may be fined up to $1,000,000. In the case of subsequent convictions - (a) An individual may be fined up to $1,000,000 or imprisoned up to not more than fifteen years, or both. (b) A person other than an individual may be fined up to $5,000,000.

Civil
Civil suits for damages or equitable or injunctive can be filed against a person who offers or displays for sale or sells a good in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States. Section 103 of the Act authorizes the IACB to receive complaints of violations of 25 U.S.C. 305e and to recommend that the Secretary of the Interior refer the matter to the Attorney General for civil action. Under Section 105 of the Act, civil suits can only be filed by-. (a) 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 on behalf of an Indian arts and crafts organization; or (b) by an Indian tribe on behalf of itself, on behalf of an Indian who is a member of the tribe, or on behalf of an Indian arts and crafts organization. Persons wishing the Federal Government to file a civil suit for a violation of the Act in accordance with (a), above, should submit their request, documentation, and other case evidence in writing to the IACB for evaluation. Upon careful review of the submitted information, the IACB may recommend a civil action to the Secretary of the Interior. If the Secretary of the Interior determines that the case should be pursued, the Secretary will request that the Attorney General file suit on behalf of the aggrieved Indian, Indian tribe, or Indian arts and crafts organization. Under a civil suit, the plaintiff(s) may: (a) obtain injunctive or other equitable relief; and(b) recover the greater of - (1) treble damages; or (2) 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. Additionally, the court may award punitive damages and the costs of suit and reasonable attorney's fees. With respect to the amount paid to the plaintiff(s), the Attorney General may deduct the amount for costs of the suit and reasonable attorney's fees. For further information on the Indian Arts and Crafts Act of 1990, P.L. 101 -644, please write- Indian Arts and Crafts Board Room 4004-MIB US Department of the Interior Washington, D.C. 20240 (202) 208-3773104 STAT. 4662 PUBLIC LAW 101-644-NOV. 29,1990 Public Law 101-644101st Congress An Act Nov. 29, 1990 (H.R. 20061 Indian Arts and Crafts Act of 1990. 25 USC 305 note. 25 USC 305d To expand the powers or the Indian Arts and Crafts Board, and for other purposes. Be it enacted by the Senate and House of Representatives, of the United States of America in Congress assembled, TITLE I - INDIAN ARTS AND CRAFTS SEC. 101. SHORT TITLE. This title may be cited, as the "Indian Arts and Crafts Act of 1990". SEC. 102. POWERS OF INDIAN ARTS AND CRAFTS BOARD. Section 2 of the Act entitled "An Act to promote the development of Indian arts and crafts and to create a board to assist therein, and for other purposes" (25 U.S.C. 305a) is amended- (1) in the first sentence- (A) by striking "the Board" and inserting "the Secretary of the Interior through the Board"; and (B) by striking "the Indian wards of the Government" and inserting "Indian individuals"; 2) by amending clause (g) to read as follows: "(gXl) to create for the Board, or for an individual Indian or Indian tribe or Indian arts and crafts organization, trademarks of genuineness and quality for Indian products and the products of an individual Indian or particular Indian tribe or Indian arts and crafts organization; (2) to establish standards and regulations for the use of Government-owned trademarks by corporations, associations, or individuals, and to charge for such use under such licenses; (3) to register any such trademark owned by the Government in the United States Patent and Trademark Office without charge and assign it and the goodwill associated with it to an individual Indian or Indian tribe without charge; and (4) to pursue or defend in the courts any appeal or proceeding with respect to any final determination of that office;' ; and (3) by adding at the end the following new sentence: "For the purposes of this section, the term 'Indian arts and crafts organization' means any legally established arts and crafts marketing organization composed of members of Indian tribes.". SEC. 103.

REFERRAL FOR CRIMINAL AND CIVIL VIOLATIONS.

The Act entitled "An Act to promote the development of Indian arts and crafts and to create a board to assist therein, and for other purposes" (25 U.S.C. 305 et seq.) is amended by adding at the end of the following: It SEC. 5. (a) The Board may receive complaints of violations of section 1159 of title 18, United States Code, 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. "(b) The Board may recommend that the Secretary of the Interior refer the matter to the Attorney General for civil action under section 6.". SEC. 104.

CRIMINAL PENALTY FOR MISREPRESENTATION OF INDIAN PRODUCED GOODS AND PRODUCTS.

(a) IN GENERAL.-Section 1159 of title 18, United States Code, is amended to read as follows: 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. "(b) Whoever knowingly violates subsection (a) shall- "(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 "(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. "(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; "(3)the term Indian tribe means- "(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 "(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 "(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.". (b) CONFORMING AMENDMENT.-The item relating to section 1159 in the table of sections for chapter 53 of title 18, United States Code, is amended to read as, follows: "1159. Misrepresentation of Indian produced goods and products."

SEC. 105. CAUSE OF ACTION FOR MISREPRESENTATION OF INDIAN PRODUCED GOODS AND PRODUCTS.

The Act entitled "An Act to Promote the development of Indian arts and crafts and to create a board to assist therein, and for other " (25 U.S.C. 305 et seq.) (as amended b' section 3) is further purposely amended by adding at the end of the following: "SEC. 6. (a) A person specified in subsection (c) may, in a civil action in a court of competent jurisdiction, bring an action against a person who offers or displays for sale or sells a good, with or without a Government trademark, in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States, 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. "(b) In addition to the relief specified in subsection (a), the court may award punitive damages and the costs of suit and a reasonable attorney's fee. "(cXl) A civil action under subsection (a) may be commenced- "(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; or "(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. "(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- "(A) in the care of paragraph (IXA), the Attorney General may deduct from the amount recovered the amount for the costs of suit and reasonable attorney's fees awarded pursuant to subsection (b) 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 "(B) in the case of paragraph (lXB), the amount recovered for the costs of suit and reasonable attorney's fees pursuant to subsection (b) may be deducted from the total amount awarded under subsection (aX2). "(d) 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- gated by the Secretary of the Interior; "(3) the term 'Indian tribe' means- "(A) any Indian tribe, band, nation, Alaska Native village- , or other organized group or community which is recognized as eligible for the provided by the United States to Indians because of their status as Indians; or "(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; ana "(4) the term 'Indian arts and crafts organization' means any legally established arts and crafts marketing organization composed of members of Indian tribes. "(e) 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.".

SEC. 106. PENALTY FOR COUNTERFEITING INDIAN ARTS AND CRAFTS BOARD TRADEMARK.

Section 1158 of title 18, United States Code, is amended by striking "be fined not more than $500 or imprisoned not more than six months, or both; and" inserting "(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 (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; and (3)".

SEC. 107. CERTIFICATION OF INDIAN ARTISANS.

For the purposes of section 1159 of title 18, United States Code, and section 6 of the Act entitled "An Act to promote the development of Indian arts and crafts and to create a board to assist therein, and for other purposes" (25 U.S.C. 305 et seq.) an Indian tribe not impose a fee in individual- as an Indian artisan. tribe" has such term in section 1159(cX3) of title 18, Indian Arts and Crafts Act of 1990 On November 29, 1990, "The Indian Arts and Crafts Act of 1990" (P.L. 101-644) was signed to promote and protect domestic American Indian artists and craftspeople by providing meaningful deterrents to those who misrepresent their products. This act is a truth-in-advertising law that is designed to prevent products from being marketed as "Indian made" when the products are not, in fact, made by Indians as defined in the Act. To be considered an Indian Artist, the individual artist or craftsperson must be a member of an Indian Tribe, or must be certified as an Indian Artisan by an Indian Tribe. The law states in part: "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." For purposes of this act, "Indian tribe" is defined as: "A Federally Recognized Indian Tribe, or A Federally Recognized Native Entity of Alaska, or A State-Recognized Tribe" It is a criminal offense for someone knowingly to violate this law. For a first criminal offense, an individual is fined not more than $250,000 and/or jailed not more than 5 years; subsequent violations are not more than $1,000,000 and/or 15 years. A corporation is fined not more that $1,000,000 for a first offense; for subsequent violations a corporation is fined not more that $5,000,000. Federal Register / Vol. 61. No. 204 / Monday, October 21, 1996 / Rules and Regulations 54551 On October 21, 1996, the Federal Register published the final regulations for the Indian Arts and Crafts Act of 1990, Public Law 101-644, with a number of typographical errors. This version of the final regulations contains the original and correct text.

DEPARTMENT OF THE INTERIOR

Indian Arts and Crafts Board 25 CFR Part 309 Protection for Products of Indian Art and Craftsmanship AGENCY: Indian Arts and Crafts Board (IACB), DOI. ACTION: Final rule. SUMMARY: This rule adopts regulations to carry out Public Law 101-644. the Indian Arts and Crafts Act of 1990. The regulations define the nature and Indian origin of products that the law covers and specify procedures for carrying out the law. The trademark provisions of the Act are not included in this rulemaking and will be treated at a later time. EFFECTIVE DATES: November 20.1996.

FOR FURTHER INFORMATION

CONTACT: Meridith Z. Stanton or Geoffrey E. Stamm, Indian Arts and Crafts Board. Room 4004-MIB. U.S. Department of the Interior, 1849 C Street, NW., Washington, DC 20240, telephone 202- 208-3773 (not a toll-free call).

SUPPLEMENTARY INFORMATION: Background

The Act of August 27,1935 (49 Stat. 891; 25 U.S.C. 305 et seq.; 18 U.S.C. 1158-59), created the Indian Arts and Crafts Board. The Board is responsible for promoting the development of American Indian and Alaska Native arts and crafts, improving the economic status of members of Federally-recognized tribes, and helping to develop and expand marketing opportunities for arts and crafts produced by American Indians and Alaska Natives. The 1935 Act adopted criminal penalties for selling goods with misrepresentations that they were Indian produced. This provision, currently located in section 1159 of title 18, United States Code, set fines not to exceed $500 or imprisonment not to exceed six months, or both. Although this law was in effect for many years, it provided no meaningful deterrent to those who misrepresent imitation arts and crafts as Indian produced. In addition, it required "willful" intent to prove a violation, and very little enforcement took place. In response to growing sales in the billion dollar U.S. Indian arts and crafts market of products misrepresented or erroneously represented as produced by Indians, the Congress passed the Indian Arts and Crafts Act of 1990. This Act is essentially a truth- in-advertising law designed to prevent marketing products as "Indian made" when the products are not, in fact, made by Indians as defined by the Act. Public Participation The Indian Arts and Crafts Board published the proposed rulemaking for the Indian Arts and Crafts Act of 1990 on October 13, 1994. 59 FR 51908- 51911. As the Federal Register omitted several key lines from the Enforcement section 309.3, the Federal Register published a correction on October 18, 1994. 59 FR 52588. In addition to publication, several thousand copies of the proposed rulemaking were distributed to interested parties, including every Federally-recognized Indian tribe. The Board received 36 public comments on the proposed rulemaking, and each was carefully reviewed, analyzed, and considered. These comments are grouped by issues and Board responses in the following summary. Summary and Analysis of Public Comments A broad range of respondents expressed their support of the proposed regulations. These comments emphasized the crucial contribution of art and craft work production and sales to the economic development of Indian individuals and tribes throughout the nation. Overall Comments Several comments raised the issue of what is a reasonable boundary between marketing statements that are simply truthful and statements that are clearly misleading. One respondent expressed concern that the Act and proposed regulations prohibit an artist who is not a member of an Indian tribe from truthfully describing his or her Indian heritage as part of the discussion of his or her art work. The regulations do not prohibit any statements about a person's Indian heritage that are truthful and not misleading in the marketing of that individual's work. One comment asked whether an individual, who is neither enrolled nor certified as an Indian artisan, is permitted under the Act to use the term "Non-Government Enrolled Descendant" or its abbreviation, "NGED,'' in conjunction with the name of an Indian tribe to market his or her work. Considered as a whole, this phrase and its abbreviation are misleading. The capitalization implies some sort of official standing, and the word "enrolled" is positive. However, the truth is exactly the opposite: the individual is not officially recognized by, and is not enrolled in, the tribe named. One comment questioned the treatment of persons of various degree of Indian ancestry who are active in the art market, but are not members of tribes. As described in section 309.3 of the Section-by-Section Comments, Congress in the Act addressed this situation by leaving it to the tribes to decide whether to certify as Indian artisans for purposes of the Act individuals who have some degree of ancestry of that tribe but are not tribal members. This tribal certification method also is discussed in section 309.4 of the regulations. A person is permitted under the regulations to make a truthful statement, in connection with marketing of an art or craft product, that he or she is of Indian "descent" or particular tribal "descent". Several respondents questioned the absence of regulations implementing the Act's trademark provisions and recommended that a supplementary rule be proposed for comment, to carry out the trademark section, before final publication of the regulations. This recommendation has not been adopted. The Indian Arts and Crafts Board is not prepared to carry out the trademark section of the Act at this time. Although the trademark provisions may be desirable in their own right, they are not necessary to the protections covered by these regulations. As stated previously, the trademark provisions of the Act will be treated at a later time. One comment recommended and advocated changes in both the proposed regulations and the Act on the pounds that they are unconstitutional. Another comment asked for a repeal of the Act and proposed regulations, as they are a violation of the freedom of speech of all "Indian Americans." These comments have not been adopted either. While regulations can interpret and clarify the Act, regulations cannot change the Act. Furthermore, the regulations do not prohibit any individual, marketing enterprise, or other vendor from truthfully representing the art or craft products that they offer or display for sale or sell. The regulations define the nature and Indian origin of products protected by the Indian Arts and Crafts Act of 1990, a truth-in marketing law, from false representations. They also specify how the Indian Arts and Crafts Board will interpret certain conduct for enforcement purposes. Finally, several comments recommended that the regulations be reissued in proposed form for further comment before final publication of the regulations to carry out the Act. A broad range of comments was received and carefully considered. Appropriate revisions and refinements have been adopted without fundamental change to the approach of the proposed regulations. Accordingly reassurance in proposed form is not warranted. Section-by-Section Comments Section 309.1 How do The Regulations in This Part Carry Out the Indian Arts and Crafts Act of 1990? One response asked how the legislation affects arts and crafts sold in business establishments. Another stated that the "middle man" should be held accountable for how the product is marketed. Section 309.1 of the regulations covers these concerns. It states that the Act regulates products offered or displayed for sale, or sold as Indian produced, an Indian product, or the product of a particular Indian, or Indian tribe, or Indian arts and crafts organization within the United States. This section does not limit the marketing vehicles covered by the regulations. The Act applies to any offer for sale or display for sale, or actual sale by any person in the United States. In light of this broad application, section 309.1 is appropriately drafted. Section 309.2 What are the Key Definitions for Purposes of the Act? Definition of Indian, Section 309.2(a) One respondent asked that the regulations specifically name Native Hawaiians to protect them under the Act. Another wanted individuals who have Certificates of Indian Blood, yet are neither on tribal rolls nor certified as Indian artisans, to be included under the definition of Indian. The final regulations do not adopt these suggestions. The Act specifically defines who Z an Indian protected by the Act. The regulations can interpret and clarify the Act but cannot change the statutory terms of the Act. One respondent expressed concern about state incorporated non-profit ..Indian" organizations and their members who are not enrolled with state or Federally- recognized tribes, yet present themselves as Indian at crafts shows. In addition, adoption was an issue for two respondents. One expressed concern that non-Indians. "adopted by Indian spiritual leaders," may be permitted to sell their work as Indian. Another stated that "not until the seventh generation" should an adopted tribal member or family have the right to over their handcrafts for sale as Indian. The definition of Indian already satisfies these concerns. State incorporated non-profit "Indian" organizations do not meet the definition of Indian tribe under the Act and in section 309.2(e)(l) and (2) of the regulations. Membership in a non-profit "Indian" organization does not meet the definition of Indian under the Act and in section 309.2 of the regulations. Furthermore, if an "Indian spiritual leader" or tribal member adopts an individual, this action does not mean that the adopted individual is a member of a state or Federally-recognized tribe or is certified as an Indian artisan by a state or Federally-recognized tribe. Definition of Indian Artisan, Section 309.2(b) Several respondents suggested that the definition of Indian artisan should be clarified to read "an individual who is certified by an Indian tribe as its nonmember artisan." This clarification has been adopted with a minor modification. Definition of Indian Arts and Crafts Organization, Section 309.2(c) Two respondents asked whether section 309.2(c) operates to exclude marketing entities, other than Indian arts and crafts organizations, from the law and regulations. Several others asserted that the definition of Indian arts and crafts organization should include any organization set up under tribal law, custom or authority, as well as under any other legal authority. The Act broadly applies to the marketing of arts and crafts by any person in the United States. The reference to Indian arts and crafts organization as a protected group is not intended to suggest that the Act's regulation does not apply to all marketing activities. In addition, the Act's requirement that an Indian arts and crafts organization be legally established in order to meet the definition includes tribal law. Definition of Indian Product, Section 309.2(d) Several comments stated that the definition of Indian product should be more inclusive. One comment stated that the definition should be broad enough to include the work of musicians. actors, and writers. Another stated it should include all products made by an Indian. Several other comments stated that the definition of Indian product should also cover any cultural property of an 'Indian tribe or moiety and include a reference to a compatible Indian cultural property Law. Still another respondent averted that the proposed regulations incorrectly focus on "what good is made, not who made the good." The final regulations do not adopt these comments. In keeping with the Indian Arts and Crafts Board's organic legislation, its primary mission, and the Congressional intent of the Act, the Board has determined in the final regulations that the Act applies to Indian arts and crafts and not to all products generally. However, what constitutes an Indian art or craft product is potentially very broad. Several comments asked that the words "or produced" follow "made" in the definition of Indian product to underscore that art or craft is to be broadly construed. Within the meaning of the statute, Indian arts and crafts mean any art or craft made by an Indian or Indian artisan. As the addition of the words "or produced" does not significantly enhance the definition of Indian product, the final regulations do not adopt this comment. Several respondents stated that the 1935 cut off date for products regulated by the Act is arbitrary and should be dropped. The final regulations do not adopt this comment. The focus on the contemporary arts and crafts market is in keeping with the Congressional intent of the Act and the legislated mission of the Indian Arts and Crafts Board- economic growth through the development and promotion of contemporary Indian arts and crafts. Two comments asked that proposed section 309.2(d)(ii) be dropped so as to exclude from regulation by the Act products of a non-traditional Indian style or non-traditional Indian medium. Another comment asked that proposed section 309.2(d)(iii) include a reference to the difference between handmade, hand painted. and manufactured. The final regulations do not adopt these comments. The proposed exclusion of products made in a non- traditional Indian style or non- traditional Indian medium runs counter to the legislative history of the Act, as the sponsors of the legislation were clearly aware of the evolution of such non-traditional products. The proposed exclusion is also inconsistent with a primary mission of the agency charged with carrying out the Act-the promotion of contemporary Indian arts and crafts. On the issue of production terms, handcrafts are clearly defined and anything else is not a handcraft. Additional descriptions in this section would make the regulations more complicated, and would not measurably improve the purpose of the regulations which is to define the nature and Indian origin of products covered by the Act. One respondent supported the exclusion of industrial products from the proposed regulations, section 309.2 (d)(2). Another asked that the products under this section be further clarified. Other respondents described the industrial products section as unclear and asked that it be removed. Upon further review, the exclusion for industrial products has been dropped from the final regulations because the provisions limiting the reach of the Act to arts and crafts already exclude such products. Another comment suggested that the regulations incorporate seven "classes" of products, based on the degree of Indianness of the maker and whether the product is a replica or import. The final regulations do not adopt the proposed classes of goods as they would make the regulations greatly more complicated and burdensome, and would not measurably improve the main purpose of the regulations which is to define rather than to classify the nature and Indian origin of products covered by the Act. In final form, section 309.2(d) has been mildly reorganized and renumbered to improve readability. Definition of Indian Tribe. Section 309.2(e) One comment asked that all references in the regulations to 'Indian tribe", the statutory term drawn from the Act, be revised to read "any federally-recognized tribes(s)". in recognition of consolidated tribes. This comment has not been adopted, as the definition of "Indian tribe" is provided in the Act, and the regulations cannot change the Act. However. all Federally recognized consolidated tribes are, in fact, included in that definition. One respondent asked that section 309.2(e)(2) include a provision to require state governments to use the same comprehensive tribal recognition criteria the Federal government uses for Federal recognition. This comment asserted that comprehensive procedures must be mandatory to prevent undermining the Act and those it is intended to protect. The final regulations do not require the use of comprehensive criteria for state recognition of tribes, as this goes beyond the authority of the Federal statute and is a matter of state authority. Additionally, the regulations do not set criteria for state tribal enrollment, as this is beyond the authority of the Federal statute. Some comments asked for the addition of language in the regulations to include terminated California Indians and 'federally-accepted tribal-preemption principles." Another asked that the Act protect all terminated tribes. These comments are not adopted into the final regulations. The regulations cannot change the Act, which makes no provision for terminated tribes. Definition of Product of a Particular Indian Tribe or Indian Arts and Crafts Organization, Section 309.2(f) One comment suggested the addition of the term "legally recognized Indian tribe" would help clarify the text of section 309.2(f). Another comment recommended the section include language for oversight of Indian tribes and arts and craft organizations. These comments are not adopted into the final regulations. The term Indian tribe is defined earlier, in section 309.2(e), and the intent of this section is clear-to simply define the product of a particular Indian tribe or Indian arts and crafts organization. Section 309.3 Interpretation of Statements About Indian Origin of Art or Craft Products The final regulations clarify that the term "Indian" as used under the Act includes its market synonym "Native American." One respondent stated that the regulations should work to prevent deceptive advertisements that use the name of a tribe to market a product, when the product is not made by a member of that tribe. Concern also was expressed about the use of phrases that refer to the "style", of a particular Indian tribe when the items are not made by artisans of that tribe, but imitate the work of that tribe. The respondent believed that the names of tribes as either nouns or adjectives should be for the exclusive use of the members of those tribes. The Act and section 309.1 of the proposed regulations specifically state that it is unlawful to offer or display for sale or sell any good in a manner that falsely suggests it is the product of a particular Indian or Indian tribe or Indian arts and crafts organization. Section 309.3(a) also regulates the use of the unqualified name of an Indian tribe, and the unqualified term Indian, in connection with an art or craft product. However, the use of a tribal name in conjunction with the word "style" is not prohibited by the Act or the regulations, as it is not necessarily misleading. The rights of tribes to control the use of their names, qualified and unqualified, is an issue of cultural patrimony and is beyond the scope of these regulations. Several responses dealt with the issue of foreign products. Two respondents expressed concern over their perception of the undermining of permanent country-of-origin markings by importers of imitation Indian arts and crafts. One respondent expressed concern about foreign merchandise falsely marketed as "South American Indian" while another questioned the need of businesses to differentiate between products made by members of tribes resident in the United States and by members of foreign tribes. The topic of permanent country-of- origin marking is beyond the scope of the Act and regulations. Under the Omnibus Trade Bill, Public Law 100- 418, the U.S. Customs Service published regulations and oversees the requirement for permanent country-of- origin marking on imported Indian-style jewelry and other arts and crafts (19 CFR 134.43 (c)-(d). Although the concern about products falsely marketed as South American Indian is beyond the scope of the regulations, identification of products of foreign Indian tribes is covered in section 309.3(b). The regulations require that products marketed in the United States must clearly show the name of the foreign country of the producer's tribal ancestry if the name of a tribe is used. Section 309.4 Certification of Indian Artisans One respondent expressed concern that the proposed regulations do not offer a "designation for descendants that are not tribal members. A second expressed concern for individuals who are raised on reservations, but who are not tribal members because they do not meet tribal blood quantum requirements. The Act adopts tribal certification as the exclusive approach to these situations, and the regulations simply carry out this Congressional mandate. Truthful statements may be made about Indian or tribal ancestry. A number of comments supported the proposed regulations' measure of flexibility in the certification process and the placement of responsibility for the determination of individual cases upon an appropriate tribal authority. Other respondents stated that the provision for tribal certification of Indian artisans under the proposed regulations should be clarified. The majority of these respondents were concerned that section 309.4 as proposed could allow a tribe to certify a person as an Indian artisan who is in no way connected with the tribe and who is not even of Indian ancestry. Those respondents maintained that the statute and its legislative history support the conclusion that Congress intended that Indian tribes should be able to certify persons as Indian artisans only if those persons were, first, of Indian ancestry and, second, of Indian ancestry connected with the certifying tribe. One response further suggested that to be eligible for certification one must prove lineal descent from a tribal! member. The final regulations adopt most of these comments. As amended, section 309.4 clarifies that to be eligible for certification as an Indian artisan by a particular tribe, the individual must be of the Indian ancestry of that tribe. The final regulations clarify that the certification must be documented in writing by the governing body of an Indian tribe or by a certifying body delegated this function by the governing body of an Indian tribe. The certification to be provided by the Indian tribe is that the individual is a non-member Indian artisan of the tribe. Other comments asked that the regulations give Indian tribes guidance on procedures for the certification of Indian artists, such as documentation. In particular, on comment asked that the regulations also specify who within the tribe will have authority to make the certification decisions. One comment stated that procedural guidance would help prevent misuse of authority. Another stated it would encourage tribes to adopt certification programs. Others cautioned that care should be taken to avoid intrusion on tribal sovereignty. While the final regulations clarify the overall requirements for certification, in deference to tribal sovereignty the actual certification procedures are left to the discretion of tribal governments. One respondent expressed concern for individuals of various degrees of Indian ancestry, who are not tribal members, whose requests for Indian artisan certification are denied by the tribe The respondent suggested that recognition of an individual's Indian ancestry by a state legislature should be an alternative to tribal certification. Another respondent suggested that recognition of an individual's Indian ancestry by a local entity, other than a tribe, should be sufficient for certification. These alternatives to tribal certification are not valid under the Act and are beyond the scope of the regulations. Truthful statements may be made about Indian or tribal heritage. Finally, one respondent asked what specific authority prohibits the tribes from charging a fee for certification. This prohibition appears in section 107 of the Act (see also 25 U.S.C. 305e note). Section 309.S Penalties. No comments received. However, language has been added to clarify what actions may subject a person to civil and criminal penalties. Section 309.6 Complaints No comments received. Drafting Information Compliance With Other Laws This rule was not subject to Office of Management and Budget review under E.O 12866. There is no collection of information in this rule requiring approval by the Officer of Management and Budget under 44 U.S.C.3504. The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C.601 et seq.). An unknown number of individuals, small businesses, and tribal governments may be affected in some way. These possible effects, such as increased demand on tribal governments from some of their members to document their status, stem from the statute itself rather than the regulations, as the preponderance of the regulations merely reflect statutory terms and requirements. The Department of the Interior determined that these regulations will not have a significant effect on the human environment under the National Environmental Policy Act (42 U.S.C. 4321-4347). In addition, the Department of the Interior determined that these regulations are categorically excluded from the procedural requirements of the National Environmental Policy Act by Departmental regulations in 516 DM2. As such, there is no need for an Environmental Assessment or an Environmental Impact Statement. List of Subjects in 25 CFR Part 309 Indians-Arts and crafts, Penalties. For the reasons set out in the preamble,25 CFR Chapter II is amended to add part 309 as follows: PART

309-PROTECTION OF INDIAN ARTS AND CRAFTS PRODUCTS

Sec. 309.1 How do the regulations in this part carry out the Indian Arts and Crafts Act of 1990? 309.2 What are the key definitions for purposes of the Act? 309.3 How will statements about Indian origin of art or craft products be interpreted? 309.4 How can an individual be certified as an Indian artisan? 309.5 What penalties apply? 309.6 How are complaints filed? Authority: 18 U.S.C. 1159,25 U.S.C. 305 et seq. 309.1 How do the regulations in this part carry out the Indian Ads and Crafts Act of 1990? These regulations define the nature and Indian origin of products protected by the Indian Arts and Crafts Act of 1990 (18 U.S.C. 1159,25 U.S.C.305 et seq.) from false representations, and specify how the Indian Arts and Crafts Board will interpret certain conduct for enforcement purposes. The Act makes it unlawful to offer or display for sale or sell any good in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian, or Indian tribe, or Indian arts and crafts organization resident within the United States. 309.2 What are the key definitions for purposes of the Act? (a) Indian as applied to an individual means a person who is a member of an Indian tribe or for purposes of this part is certified by an Indian tribe as a nonmember Indian artisan (in accordance with the provisions of 309.4). (b) Indian artisan means an individual who is certified by an Indian tribe as a non- member Indian artisan. (c) Indian arts and crafts organization means any legally established arts and crafts marketing organization composed of members of Indian tribes. (d) Indian product. (1) In general. Indian product means any art or craft product made by an Indian. (2) Illustrations The term "Indian product" includes, but is not limited to: (i) Art works that are in a traditional or non-traditional Indian style or medium: (ii) Crafts that are in a traditional or non-traditional Indian style or medium: (iii) Handcrafts, i.e. objects created with the help of only such devices as allow the manual skill of the maker to condition the shape and design of each individual product. (3) Exclusion for products made before 1935. The provisions of this part shall not apply to any art or craft products made before 1935. (e) Indian tribe means- (1) Any Indian tribe, band, nation, Alaska Native village, or any organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians: or (2) Any Indian group that has been formally recognized as an Indian tribe by a State legislature or by a State commission or similar organization legislatively vested with State tribal recognition authority. (f) Products of a particular Indian tribe or Indian arts and crafts organization means that the origin of a product is identified as a named Indian tribe or named Indian arts and crafts organization. 309.3 How will statements about Indian origin of art or craft products be interpreted? (a) In general. The unqualified use of the term "Indian" or of the term "Native American" or the unqualified use of the name of an Indian tribe, in connection with an art or craft product, is interpreted to mean for purposes of this part that- (1) The maker is a member of an Indian tribe, is certified by an Indian tribe as a non- member Indian artisan, or is a member of the particular Indian tribe named: and (2) The art or craft product is an Indian product. (b) Products of Indians of foreign tribes. (1) In general. The unqualified use of the term "Indian' or of the term "Native American" or the unqualified use of the name of a foreign tribe in connection with an art or craft product, regardless of where it is produced and regardless of any country-of-origin marking on the product, is interpreted to mean for purposes of this part that- (i) The maker is a member of an Indian tribe, is certified by an Indian tribe as a non-member Indian artisan, or is a member of the particular Indian tribe named: (ii) The tribe is resident in the United States; and (iii) The art or craft product is an Indian product. (2) Exception where country of origin is disclosed. Paragraph (b) of this section does not apply to any art or craft for which the name of the foreign country of tribal ancestry is clearly disclosed in conjunction with marketing of the product. (c) Example. X is a lineal descendant of a member of Indian Tribe A. However, X is not a member of Indian Tribe A, nor is X certified by Indian Tribe A as a non-member Indian artisan. X may not be described in connection with the marketing of an art or craft product made by X as an Indian, a Native American, a member of an Indian tribe, a member of Tribe A, or as a non- member Indian artisan of an Indian tribe. However, the true statement may be used that X is of Indian descent, Native American descent, or Tribe A descent. 309.4 How can an individual be certified as an Indian artisan? (a) In order for an individual to be certified by an Indian tribe as a non- member Indian artisan for purposes of this part- (l) The individual must be of Indian lineage of one or more members of such Indian tribe: and (2) The certification must be documented in writing by the governing body of an Indian tribe or by a certifying body delegated this function by the governing body of the Indian tribe. (b) As provided in section 107 of the Indian Arts and Crafts Act of 1990, Public Law 101-G44, a tribe may not impose a fee for certifying an Indian artisan. 3O9.5 What penalties apply? A person who offers or displays for sale or sells a good, with or without a Government trademark, in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States: (a) Is subject to the criminal penalties specified in section 1159, title 18, United States Code; and (b) Is subject to the civil penalties specified in section 305e, title 25. United States Code. 309.6 How are complaints filed? Complaints about protected products alleged to be offered or displayed for sale or sold in a manner that falsely suggests they are Indian products should be made in writing and addressed to the Director, Indian Arts and Crafts Board, Room 4004-MIB, U.S. Department of the Interior, 1849 C Street, NW, Washington, DC 20240. Dated: October 15, 1996. Bonnie R. Cohen. Assistant Secretary-Policy, Management and Budget. [FR Doc.96-26876 Filed 1O-18-96: 8:45 am)

BILLING CODE 4310-RK-M

These final regulations were prepared by Meridith Z. Stanton (Deputy Director, Indian Arts and Crafts Board) and Geoffrey E. Stamm (Director, Indian Arts and Crafts Board).