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United States Government Accountability Office: 
GAO: 

Report to the Committee on Natural Resources, House of Representatives: 

April 2011: 

Indian Arts And Crafts: 

Size of Market and Extent of Misrepresentation Are Unknown: 

GAO-11-432: 

GAO Highlights: 

Highlights of GAO-11-432, a report to the Committee on Natural 
Resources, House of Representatives. 

Why GAO Did This Study: 

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. 

What GAO Found: 

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misrepresentation are unknown because existing estimates are outdated, 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study outdated, but the estimates included in the study are unreliable 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. 

View [hyperlink, http://www.gao.gov/products/GAO-11-432] or key 
components. For more information, contact Anu K. Mittal at (202) 512-
3841 or mittala@gao.gov. 

[End of section] 

Contents: 

Letter: 

Background: 

The Size of the Indian Arts and Crafts Market and the Extent of 
Misrepresentation Are Unknown: 

To Curtail Misrepresentation of Indian Arts and Crafts, Agencies Have 
Relied on Educational Efforts over Law Enforcement Actions, but 
Fundamental Challenges Exist: 

Some Potential Options for Protecting Indian Traditional Knowledge and 
Cultural Expression Exist: 

Agency Comments: 

Appendix I: Misrepresentation Complaints Received by the Indian Arts 
and Crafts Board: 

Appendix II: Criminal Cases Brought under the Indian Arts and Crafts 
Act and Their Dispositions, Fiscal Years 1990 through 2010: 

Appendix III: Comments from the Department of Commerce: 

Appendix IV: Comments from the Department of Homeland Security: 

Appendix V: GAO Contact and Staff Acknowledgments: 

Tables: 

Table 1: Number of Complaints by Sales Venue, Fiscal Years 2006 to 
2010: 

Table 2: Number of Complaints by Art or Craft Type, Fiscal Years 2006 
to 2010: 

Table 3: Number of Complaints by Region, Fiscal Years 2006 to 2010: 

Table 4: Number of Complaints by State for States with Indian Arts and 
Crafts Laws, Fiscal Years 2006 to 2010: 

[End of section] 

United States Government Accountability Office: 
Washington, DC 20548: 

April 28, 2011: 

The Honorable Doc Hastings:
Chairman:
The Honorable Edward J. Markey:
Ranking Member:
Committee on Natural Resources:
House of Representatives: 

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.[Footnote 1] 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.[Footnote 2] 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. 
[Footnote 3] 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.[Footnote 4] 

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.[Footnote 
5] 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.[Footnote 6] 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. 

Background: 

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.[Footnote 7] 

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.[Footnote 8] 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.[Footnote 9] Indian tribes include federally recognized 
tribes, Alaska Native villages, and state-recognized tribes.[Footnote 
10] 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.[Footnote 
11] 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.[Footnote 12] 

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.[Footnote 
13] 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.[Footnote 14] 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.[Footnote 15] 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.[Footnote 16] 

In June 2005, Interior's Office of Inspector General issued a review 
of counterfeit Indian arts and crafts.[Footnote 17] 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. 

The Size of the Indian Arts and Crafts Market and the Extent of 
Misrepresentation Are Unknown: 

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. 

Existing Estimates of Market Size and Misrepresentation Are Outdated, 
Limited in Scope, or Anecdotal: 

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.[Footnote 18] 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.[Footnote 19] 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.[Footnote 20] 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.[Footnote 21] 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. 

National Data Sources Do Not Track Data on Indian Arts and Crafts That 
Could Be Used to Determine Market Size or Extent of Misrepresentation: 

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.[Footnote 22] 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. 

Conducting a Study to Accurately Estimate the Size of the Market and 
Extent of Misrepresentation Would Be Challenging: 

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. 

To Curtail Misrepresentation of Indian Arts and Crafts, Agencies Have 
Relied on Educational Efforts over Law Enforcement Actions, but 
Fundamental Challenges Exist: 

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. 

Interior Prefers to Seek Voluntary Compliance with the Indian Arts and 
Crafts Act over Law Enforcement Actions: 

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.[Footnote 23] 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.[Footnote 24] 
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 appendix 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.[Footnote 
25] 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. 
[Footnote 26] 

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.[Footnote 27] 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.[Footnote 28] 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. 

Board's Educational Efforts Help Promote Awareness and Understanding 
of the Act: 

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.[Footnote 29] 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.[Footnote 30] 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. 

A Variety of Challenges Exist to Curtailing Misrepresentation: 

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.[Footnote 31] 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.[Footnote 32] 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.[Footnote 33] 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.[Footnote 34] 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.[Footnote 35] 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,[Footnote 36] 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. 

Some Potential Options for Protecting Indian Traditional Knowledge and 
Cultural Expression Exist: 

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. 

Existing U.S. Laws Provide Little Protection for Traditional Knowledge 
and Cultural Expressions: 

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.[Footnote 37] 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.[Footnote 38] 
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.[Footnote 39] 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.[Footnote 40] 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.[Footnote 41] 

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. 

International Frameworks Exist or Are Under Development to Provide 
Guidance for Nations Interested in Protecting the Intellectual 
Property of Indigenous Peoples: 

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.[Footnote 42] 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. 

Other Countries Have Undertaken Protection Actions That Provide 
Options for Consideration: 

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.[Footnote 43] 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.[Footnote 44] 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. 

Agency Comments: 

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 [hyperlink, 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. 

Signed by: 

Anu K. Mittal: 
Director, Natural Resources and Environment: 

[End of section] 

Appendix I: Misrepresentation Complaints Received by the Indian Arts 
and Crafts Board: 

As shown in table 1, the majority of complaints received by the Indian 
Arts and Crafts Board involved retail establishments and online sales. 

Table 1: Number of Complaints by Sales Venue, Fiscal Years 2006 to 
2010: 

Sales venue: Retail; 
Number of complaints: 318; 
Percentage: 49.0%. 

Sales venue: Online[A]; 
Number of complaints: 215; 
Percentage: 33.1%. 

Sales venue: Powwow[B]; 
Number of complaints: 33; 
Percentage: 5.1%. 

Sales venue: Unrelated to the Indian Arts and Crafts Act[C]; 
Number of complaints: 26; 
Percentage: 4.0%. 

Sales venue: Other[D]; 
Number of complaints: 23; 
Percentage: 3.5%. 

Sales venue: Market, fair, festival[E]; 
Number of complaints: 22; 
Percentage: 3.4%. 

Sales venue: Wholesale; 
Number of complaints: 9; 
Percentage: 1.4%. 

Sales venue: Unknown; 
Number of complaints: 3; 
Percentage: 0.5%. 

Sales venue: Total; 
Number of complaints: 649; 
Percentage: 100.0%. 

Source: Indian Arts and Crafts Board. 

[A] Includes complaints involving online retail and auction Web sites. 

[B] Includes complaints from powwows and military base powwows. 

[C] Involving items or actions not covered under the Indian Arts and 
Crafts Act. 

[D] Includes complaints involving correctional facilities, catalogs, 
military bases, auction houses, universities, amusement parks, auction 
sites, gun shows, libraries, museums, and other less common venues. 

[E] Includes complaints involving art markets, flea market, retail art 
markets, musical festivals, and state fairs. 

[End of table] 

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. 

Table 2: Number of Complaints by Art or Craft Type, Fiscal Years 2006 
to 2010: 

Art or craft type: Flutes; 
Number of complaints: 139; 
Percentage: 21.4%. 

Art or craft type: Mixture of items; 
Number of complaints: 123; 
Percentage: 19.0%. 

Art or craft type: Jewelry; 
Number of complaints: 106; 
Percentage: 16.3%. 

Art or craft type: Other[A]; 
Number of complaints: 92; 
Percentage: 14.2%. 

Art or craft type: Textiles; 
Number of complaints: 51; 
Percentage: 7.9%. 

Art or craft type: Unrelated to the Indian Arts and Crafts Act[B]; 
Number of complaints: 26; 
Percentage: 4.0%. 

Art or craft type: Baskets; 
Number of complaints: 23; 
Percentage: 3.5%. 

Art or craft type: Fine art[C]; 
Number of complaints: 20; 
Percentage: 3.1%. 

Art or craft type: Pottery; 
Number of complaints: 20; 
Percentage: 3.1%. 

Art or craft type: Beadwork; 
Number of complaints: 19; 
Percentage: 2.9%. 

Art or craft type: Carvings[D]; 
Number of complaints: 19; 
Percentage: 2.9%. 

Art or craft type: None[E]; 
Number of complaints: 5; 
Percentage: 0.8%. 

Art or craft type: Unknown; 
Number of complaints: 5; 
Percentage: 0.8%. 

Art or craft type: Kachina; 
Number of complaints: 1; 
Percentage: 0.2%. 

Art or craft type: Total; 
Number of complaints: 649; 
Percentage: 100.0%. 

Source: Indian Arts and Crafts Board. 

[A] Includes items such as dolls, drums, and medicine bags. 

[B] Involving items or actions not covered under the act. 

[C] Includes paintings and sculptures. 

[D] Includes pipes and masks. 

[E] Includes complaints that involve no sale of arts or crafts. 

[End of table] 

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. 

Table 3: Number of Complaints by Region, Fiscal Years 2006 to 2010: 

Region: West[A]; 
Number of complaints: 186; 
Percentage: 28.7%. 

Region: Southwest[B]; 
Number of complaints: 131; 
Percentage: 20.2%. 

Region: Southeast[C]; 
Number of complaints: 92; 
Percentage: 14.2%. 

Region: Northeast[D]; 
Number of complaints: 80; 
Percentage: 12.3%. 

Region: Midwest[E]; 
Number of complaints: 71; 
Percentage: 10.9%. 

Region: International[F]; 
Number of complaints: 15; 
Percentage: 2.3%. 

Region: Unknown; 
Number of complaints: 73; 
Percentage: 11.2%. 

Region: Various; 
Number of complaints: 1; 
Percentage: 0.2%. 

Region: Total; 
Number of complaints: 649; 
Percentage: 100.0%. 

Source: Indian Arts and Crafts Board. 

[A] Alaska, California, Colorado, Idaho, Montana, Nevada, Oregon, 
Utah, and Washington. 

[B] Arizona, New Mexico, Oklahoma, and Texas. 

[C] Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, North 
Carolina, South Carolina, Tennessee, Virginia, and West Virginia. 

[D] Connecticut, Delaware, the District of Columbia, Maine, Maryland, 
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, and 
Vermont. 

[E] Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, 
Ohio, South Dakota, and Wisconsin. 

[F] Australia, Canada, Czech Republic, England, Germany, Nigeria, 
Philippines, Switzerland, and Thailand. 

[End of table] 

As shown in table 4, of the 12 states with laws regarding Indian arts 
and crafts, Nebraska is the only 1 where no complaints were reported 
to the Board during fiscal years 2006 to 2010. 

Table 4: Number of Complaints by State for States with Indian Arts and 
Crafts Laws, Fiscal Years 2006 to 2010: 

State: California; 
Number of complaints: 60; 
Percentage: 24.2%. 

State: Arizona; 
Number of complaints: 49; 
Percentage: 19.8%. 

State: New Mexico; 
Number of complaints: 45; 
Percentage: 18.1%. 

State: Texas; 
Number of complaints: 25; 
Percentage: 10.1%. 

State: Alaska; 
Number of complaints: 19; 
Percentage: 7.7%. 

State: Colorado; 
Number of complaints: 17; 
Percentage: 6.9%. 

State: Oklahoma; 
Number of complaints: 12; 
Percentage: 4.8%. 

State: Minnesota; 
Number of complaints: 6; 
Percentage: 2.4%. 

State: South Dakota; 
Number of complaints: 6; 
Percentage: 2.4%. 

State: Montana; 
Number of complaints: 5; 
Percentage: 2.0%. 

State: Nevada; 
Number of complaints: 4; 
Percentage: 1.6%. 

State: Nebraska; 
Number of complaints: 0; 
Percentage: 0. 

State: Total; 
Number of complaints: 248; 
Percentage: 100.0%. 

Source: Indian Arts and Crafts Board. 

[End of table] 

[End of section] 

Appendix II: Criminal Cases Brought under the Indian Arts and Crafts 
Act and Their Dispositions, Fiscal Years 1990 through 2010: 

State: South Dakota; 
Case citation: United States v. Wayne Eagleboy, No. 5:98-MJ-00031 (D. 
S.D. May 3, 2000); 
Charges filed against defendant: Two counts of misrepresenting Indian-
produced goods and products; One count of violating the Migratory Bird 
Treaty Act; One count of violating the Bald and Golden Eagle 
Protection Act; 
Disposition[A]: The defendant pleaded guilty to violating the Bald and 
Golden Eagle Protection Act and the other charges were dismissed 
without prejudice.[B] The defendant was sentenced to 1 year probation. 

State: Michigan; 
Case citation: United States v. Jerry Lee Boose, No. 1:01-CR-20017 
(E.D. Mich. Mar. 19, 2002); 
Charges filed against defendant: Two counts of misrepresenting Indian-
produced goods and products; One count of embezzlement and theft from 
a tribal organization; One count of mail fraud; 
Disposition[A]: 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.[C] 

State: Utah; 
Case citation: United States v. Nader Pourhassan, No. 2:00-CR-00229 
(D. Utah Dec. 31, 2001); 
Charges filed against defendant: Two counts of misrepresenting Indian-
produced goods and products; 
Disposition[A]: The charges were dismissed with prejudice.[C]. 

State: Alaska; 
Case citation: United States v. Richard Tescher, No. 3:01CR0168 (D. 
Alaska Jan. 1, 2005); 
Charges filed against defendant: Two counts of misrepresenting Indian-
produced goods and products; One count of wire fraud; 
Disposition[A]: The charges were dismissed without prejudice.[B] 

State: New Mexico; 
Case citation: United States v. Rose Morris, No. 1:05-CR-01378 (D. 
N.M. Dec. 5, 2007); 
Charges filed against defendant: Two counts of misrepresenting Indian 
produced goods and products; 
Disposition[A]: The defendant pleaded guilty and was sentenced to 5 
years probation. 

Source: GAO analysis of data from the Department of Justice's Legal 
Information Office Network System. 

[A] This table does not include fines, penalties, or restitution 
orders that may have been imposed on the defendant. 

[B] "Without prejudice" means the federal government can charge the 
defendant again for the crimes. 

[C] "With prejudice" means the federal government cannot charge the 
defendant again. 

[End of table] 

[End of section] 

Appendix III: Comments from the Department of Commerce: 

United States Patent And Trademark Office: 
Office Of The Chief Financial Officer: 
P.O. Box 1450: 
Alexandria, Virginia 22313-1450: 
[hyperlink, http://www.uspto.gov] 

April 11, 2011: 

Ms. Anu K. Mittal: 
Director, Natural Resources and Environment: 
General Accountability Office: 
441 G. Street, N.W. 
Washington, DC 20548: 

Dear Ms. Mittal: 

Thank you for the opportunity to provide a response to your draft 
report to Indian Arts and Crafts Act review: We appreciate the effort 
your staff made in assessing the misrepresentation of Indian arts and 
crafts as it pertains to intellectual property policies at the United 
States Patent and Trademark Office. 

We have reviewed your report carefully and agree with its contents. We 
have provided some minor editorial and technical comments, which are 
enclosed as a separate addendum. 

Again, we thank the Government Accountability Office for the report. 
We will gratefully accept any suggestions to ensure that the Indian 
Arts and Craft Act provisions are performed appropriately by the 
United States Patent and Trademark Office. 

Sincerely, 

Signed by: 

Anthony P. Scardino: 
Chief Financial Officer: 

Enclosure: 

[End of section] 

Appendix IV: Comments from the Department of Homeland Security: 

Department of Homeland Security: 
Washington, DC 20528: 

April 15, 2011: 

Anu Mittal: 
Director, Natural Resources and Environment: 
U.S. Government Accountability Office: 
441 G Street, NW: 
Washington, DC 20548: 

Re:	Draft Report GAO-11-432: "Indian Arts And Crafts: Size of Market 
and Extent of Misrepresentation Are Unknown" 

Dear Ms. Mittal: 

The Department of Homeland Security (DHS), U.S. Customs and Border 
Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE) 
appreciate the opportunity to review and provide comments on this 
draft report. 

DHS is firmly committed to enforcing regulations for imported Indian-
style goods. For this reason, we are providing additional contextual 
information concerning the report's discussion of "circumvention" of 
marking rules for Indian-style goods, efforts to enforce marking rules 
pertaining to these goods, as well as the means and scope of CBP's 
enforcement efforts. In particular, for the reasons explained below, 
we believe that "exceptions" in the marking regulations and use of 
intelligence-based targeting rules as opposed to physical inspections, 
cannot be characterized as a "lack of enforcement." 

The draft report correctly references two rulings that provided 
additional guidance, at the request of importers, on the regulatory 
requirement to ensure that imported Indian-style goods are indelibly 
marked with the country of origin as required by 19 C.F.R. § 134.43. 
In one of these rulings. CBP held that a totem pole figure could not 
be marked with a sticker, because such a method of marking was not 
"equally permanent" in comparison to cutting, die-sinking, engraving, 
or stamping	This ruling is an example of the Agency's efforts to 
rigorously uphold applicable marking regulations. 

The draft report also correctly notes that CBP regulations outline 
exceptions to the regulatory requirement for indelible marking but 
also suggests that use of these exceptions represents "circumvention" 
of marking regulations. Because these exceptions are an inherent and 
integral part of marking regulations, appropriate use of these 
exceptions cannot be considered to be circumvention of these same 
regulations. CBP enforces the totality of marking regulations for
Indian-style goods. Likewise, because exceptions are specified in CBP 
regulations, allowing legitimate use of these exceptions does not 
reflect a "lack of enforcement of CBP regulations for imported Indian-
style goods" as suggested by the draft report. 

Reflecting our commitment to enforce marking regulations, CBP uses 
intelligence-based targeting rules to interdict dangerous and non-
compliant shipments. CBP screens all incoming shipments for risk in 
terms of security, safety, and compliance with applicable import 
regulations. Physical inspection of incoming shipments, as referenced 
in the draft report, is but one element of a multi-layered approach 
for ensuring the security and compliance of incoming shipments. As 
part of CBP's trade enforcement efforts, citizens can also report 
alleged trade law violations via the e-Allegations link on CBP.gov as 
noted in the draft report. CBP reviews all submitted e-Allegations for 
enforcement action as appropriate. 

The report further notes that CBP "does not visit stores to determine 
if country-of-origin stickers or tags are being removed from imported 
goods..." While ICE generally engages to a greater extent than CBP in 
"interior" enforcement matters, conducting routine inspections of 
goods is not a part of ICE's mission area. If ICE were to initiate an 
investigation to substantiate allegations of a business removing 
country-of-origin markings in furtherance of a fraud scheme against 
the U.S. government (e.g., to avoid the proper payment of duties or a 
violation of trade agreements), the investigation would very likely 
involve a visit to a business or store. We also note that the draft 
report does not recognize the potentially significant increase in 
Federal spending that would result if DHS were to establish a specific 
program dedicated to conducting routine, recurring visits of this 
nature. 

DHS concurs with the overall substance and findings of the draft 
report. Technical and sensitivity comments on the draft have been 
provided under separate cover. 

Thank you for the opportunity to comment on this draft report. We look 
forward to working with you on future Homeland Security issues. 

Sincerely, 

Signed by: 

Jim H. Crumpacker: 
Director: 
Departmental GA0/OIG Liaison Office: 

[End of section] 

Appendix V: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Anu K. Mittal (202) 512-3841 or mittala@gao.gov: 

Staff Acknowledgments: 

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. 

[End of section] 

Footnotes: 

[1] Act of August 27, 1935 (Indian Arts and Crafts Act), ch. 748, Pub. 
L. No. 74-355, 49 Stat. 891 (1935), codified as amended at 25 U.S.C. 
§§ 305-305f. 

[2] Indian Arts and Crafts Act of 1990, Pub. L. No. 101-644, Title I, 
104 Stat. 4662 (1990). The act, as amended, 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 in the United States, but only subjects 
violators to criminal penalties for knowingly violating this 
prohibition. 

[3] Indian Arts and Crafts Enforcement Act of 2000, Pub. L. No. 106- 
497, 114 Stat. 2219 (2000). 

[4] Indian Arts and Crafts Amendments Act of 2010, Pub. L. No. 111-
211, Title 1, 124 Stat. 2258 (2010). 

[5] 19 C.F.R. § 134.43(d). The regulations also 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. 19 C.F.R. § 134.43(c). 

[6] State officials in California, Colorado, Minnesota, and Nebraska 
did not respond to our inquiries. 

[7] The Board also promotes contemporary Indian arts and crafts 
through the operation of three regional museums: the Sioux Indian 
Museum in Rapid City, South Dakota; Museum of the Plains Indian in 
Browning, Montana; and the Southern Plains Indian Museum in Anadarko, 
Oklahoma. 

[8] Subsequent references in this report to the Indian Arts and Crafts 
Act are references to the act as amended. 

[9] In order for an individual to be certified by an Indian tribe as a 
nonmember Indian artisan, the individual must be of Indian lineage of 
one or more members of such Indian tribe, and the certification must 
be documented in writing by the tribe's governing body or a certifying 
body delegated this function by the tribe's governing body. 

[10] Under the act, "Indian tribe" includes federally recognized 
tribes and "any Indian group that has been formally recognized as an 
Indian tribe by a state legislature, a state commission, or similar 
organization vested with state legislative tribal recognition 
authority." 

[11] 61 Fed. Reg. 54551 (Oct. 21, 1996). 

[12] 68 Fed. Reg. 35164 (June 12, 2003). 

[13] In 2007, the National Park Service issued a regulation 
implementing the requirements of the National Parks Omnibus Management 
Act of 1998 to encourage the sale of authentic United States Indian, 
Alaska Native, Native Samoan, and Native Hawaiian handicrafts relating 
to the cultural, historical, and geographic characteristics of units 
of the national park system. 72 Fed. Reg. 32188 (June 12, 2007). The 
regulations are located in 36 C.F.R. Part 51. 

[14] Trademark rights are developed through use of a mark in 
connection with goods or services in commerce, although they can be 
registered with the Patent and Trademark Office or states. 

[15] Copyright protection begins from the moment a work is created and 
does not require registration, although copyrights can be registered 
with the U.S. Copyright Office. 

[16] The World Intellectual Property Organization, headquartered in 
Geneva, Switzerland, was established in 1967 to promote the protection 
of intellectual property throughout the world through cooperation 
among states and in collaboration with other international 
organizations. It originates from the multilateral conventions that 
form the core of the international intellectual property system, the 
Paris Convention for the Protection of Industrial Property (1883) and 
the Berne Convention for the Protection of Literary and Artistic Works 
(1886). 

[17] Department of the Interior, Office of Inspector General, Indian 
Arts and Crafts: A Case of Misrepresentation, E-EV-OSS-0003-2005 
(Washington, D.C.: June 1, 2005). 

[18] Department of Commerce, International Trade Administration, Study 
of Problems and Possible Remedies Concerning Imported Native American- 
Style Jewelry and Handicraft (Washington, D.C.:, 1985). 

[19] Department of the Interior, Office of Inspector General, Indian 
Arts and Crafts. 

[20] McDowell Group, Economics of Alaska's Arts Industry (Juneau, 
Alaska: November 2002) (a report prepared for the Alaska State Council 
on the Arts). 

[21] University of New Mexico, Bureau of Business and Economic 
Research, The Economic Importance of the Arts and Cultural Industries 
in Santa Fe County (Albuquerque, N. Mex.: 2004). 

[22] Department of the Interior, Indian Arts and Crafts Board, Source 
Directory of American Indian and Alaska Native Owned and Operated Arts 
and Crafts Businesses (Washington, D.C.), [hyperlink, 
http://www.doi.gov/iacb/order/source_info.html] (Feb. 3, 2011). 

[23] This total includes multiple complaints about the same persons or 
businesses. 

[24] As of February 2011, investigation continued into 101 of the 649 
complaints, and the status of 4 complaints referred to states for 
investigation is unknown. 

[25] According to the Department of Justice, the number of complaints 
that were fully investigated and actually referred to federal 
prosecutors is unknown. 

[26] United States v. Rose Morris, No. 1:05-CR-01378 (D. N.M. Dec. 5, 
2007). 

[27] State of New Mexico v. Amro A. Al-Assi, No. D-1113-CR-200600208 
(McKinley County D. Ct. Dec. 26, 2007). Mr. Al-Assi's sentence was 
deferred for 1 year and 6 months, during which time he was on 
probation. Upon successful completion of the deferment period, the 
criminal charges against him would be dismissed. 

[28] State of New Mexico v. Mohammed Sulieman, Jamal Sulieman, and 
Golden Bear Trading, Inc., No. D-0101-CV-200802466 (Santa Fe County D. 
Ct. July 29, 2009); State of New Mexico v. Yousef Nassar, d/b/a Santa 
Fe Indian Jewelry, No. D-0101-CV-200802467 (Santa Fe County D. Ct. 
Aug. 27, 2009). New Mexico is now also pursuing a case against the 
manufacturer who supplied Mr. Nassar. 

[29] Act of Sept. 26, 1914 (Federal Trade Commission Act), ch. 311, 38 
Stat. 717 (1914). Section 5 of the Federal Trade Commission Act, 
codified at 15 U.S.C. § 45, prohibits, in part, "unfair or deceptive 
acts or practices in commerce." 

[30] A Portal program also operates in Old Town Albuquerque, New 
Mexico. 

[31] According to a department official, Interior has seven law 
enforcement groups within five bureaus: the Bureau of Indian Affairs, 
Bureau of Land Management, National Park Service (with two law 
enforcement groups, Park Rangers and Park Police), U.S. Fish and 
Wildlife Service (with two law enforcement groups, Uniformed Refuge 
Officers and Special Agents), and Bureau of Reclamation. 

[32] Department of the Interior, Office of Inspector General, Indian 
Arts and Crafts. 

[33] 19 C.F.R. § 134.43(c). The regulations also require that unless 
an exception applies, imported Native American-style arts and crafts 
must be indelibly marked with the country of origin by cutting, die-
sinking, engraving, stamping, or some other equally permanent method. 
19 C.F.R. § 134.43(d). Exceptions to these country of origin marking 
requirements for both Native American-style jewelry and arts and 
crafts include, but are not limited to, when it is not technically or 
commercially feasible to mark the items in the manner specified. 

[34] The marking regulations can also be applied at the port level, in 
which case a ruling would not likely be issued nor recorded in the 
Customs Ruling Online Search System. 

[35] In these rulings, Customs and Border Protection officials found 
that metal tags securely attached to imported jewelry satisfied the 
marking requirements and that marking imported totem poles with a 
sticker did not satisfy the requirements because it was not equally 
permanent in comparison to die-sinking, engraving, or stamping. 

[36] In commenting on the report, the Department of Homeland Security 
noted that U.S. Immigration and Customs Enforcement generally engages 
to a greater extent than Customs and Border Protection in "interior" 
enforcement matters, but that conducting routine inspections of goods 
is not a part of its mission area. 

[37] We were unable to quantify the extent of misrepresentation or 
misappropriation of Indian traditional knowledge and cultural 
expressions for many of the same reasons that we were unable to 
quantify the extent of misrepresentation under the Indian Arts and 
Crafts Act. In addition, since no federal law similar to the Indian 
Arts and Crafts Act defines what a prohibited activity would be with 
regard to the misrepresentation or misappropriation of Indian 
traditional knowledge and cultural expressions, no clear criteria 
exist for what would qualify. 

[38] 17 U.S.C. § 102(a). 

[39] Patent and Trademark Office officials noted that the database 
included 33 tribal insignias as of February 2011. A Patent and 
Trademark Office official told us that the office does not track the 
number of trademark applications that are denied for suggesting a 
false connection with an Indian tribe. 

[40] "Moral rights" allow the creator of a work to prevent others 
from, among other things, modifying, distorting, or otherwise 
interfering with the integrity of that work, even if the creator 
transfers ownership of the physical object in which the work is 
embodied and its copyright. See Thomas F. Cotter, Pragmatism, 
Economics, and the Droit Moral, 76 N.C.L. Rev. 1 (1997). The federal 
Visual Artists Rights Act of 1990 also grants authors of a work of 
visual art moral rights, specifically, paintings, drawings, prints, 
sculptures, and still photographic images produced for exhibition that 
are produced in limited editions, consecutively numbered, and bear the 
author's signature or other identifying mark. In addition, several 
states have laws protecting the moral rights of artists who create 
fine art, which invariably includes only tangible art. 

[41] We also heard concerns about authors, musicians, and other 
performers that, in the view of some tribes, publicly misrepresent 
themselves as Indians or tribal members when they are not enrolled as 
a member of a federally recognized tribe. Tribal officials referred to 
these individuals as "fake Indians." Some of these officials suggested 
that the misrepresentation provisions in the Indian Arts and Crafts 
Act be expanded to make it illegal for an individual to publicly claim 
that he or she is an Indian if he or she is not a member of a 
federally recognized tribe. 

[42] G.A. Res. 295, U.N. GAOR, 61st Sess., U.N. Doc. A/Res/61/295 
(2007). 

[43] The law defines these as customs; traditions; beliefs; 
spirituality; religion; worldview; expressions of folklore; artistic 
expressions, including musical instruments, music, dances or 
performances; and oral and written expressions. 

[44] The law defines folklore as group-oriented and tradition-based 
creations of groups or individuals reflecting the expectation of the 
community as an adequate expression of its cultural and social 
identity, its standards and values as transmitted orally, by imitation 
or by other means including: (1) folk poetry and folk riddles; (2) 
folk songs and instrumental folk music; (3) folk dances and folk 
plays; and (4) productions of folk arts, in particular, drawings, 
paintings, carvings, sculptures, pottery, terracotta, mosaic, 
woodwork, metalware, jewelry, handicrafts, costumes, and indigenous 
textiles. 

[End of section] 

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