On prosecuting Indian arts and crafts counterfeiters
By Barron Jones
Photo by Jared Tarbell via flickr
Last week a California man pleaded guilty to a federal misdemeanor charge of selling fake Native American jewelry at a Santa Fe art show.
A federal judge sentenced 60-year-old Andrew Gene Alvarez aka “Redhorse” to 30 months probation for violating the Indian Arts and Crafts Act by falsely stating that jewelry he made and sold was the creation of a Native American. Part of Alvarez's sentence prohibits him from claiming that any jewelry he makes is a Native American product.
The Indian Arts and Crafts Act forbids the offer or display for sale and the sale of any good in a manner falsely suggesting that it is Indian-produced, an Indian product or the product of a particular Indian or Indian tribe. It's a “truth-in-advertising law designed to prevent products from being marketed as ‘Indian-made,’ when the products are, in fact, not made by Indians as defined in the Act.”
According to court records, the FBI launched an investigation into Alvarez after receiving a tip from the Interior Department’s Indian Arts and Crafts Board (IACB). The IACB asserted that Alvarez, who is not an enrolled member of any recognized Native American tribe, claimed he was either Mescalero Apache or Colville and Mayo Indian as he sold goods in Santa Fe and across the U.S.
The feds busted Alvarez after he sold fake Indian jewelry to undercover agents at the Native Treasures show in Santa Fe; that show's program listed him as a Colville/Apache jewelry maker. In addition to passing his jewelry off as Native American-made, authorities said Alvarez even concocted an oral bio detailing a fake Native American heritage.
“It’s crazy, but it happens all the time. And it’s a shame because it is a national treasure that we have Native American communities who can create such beautiful artwork that you don’t find anywhere else,” said Wayne Bobrick of Wright’s Indian Art.
Bobrick said in the many years he's bought and sold Indian art and jewelry, he's seen many cases where non-Natives have undermined the market by claiming Native American heritage and producing counterfeit work. Under the Indian Arts and Crafts Act of 1990, Indian art is defined as any product produced by one of the 1.9 million members of the 565 federally- or state-recognized Indian tribes or individuals certified as Indian artisans by an Indian tribe.
Native American artist and activist Tony Eriacho said Alvarez is just part of the problem and that these types of cases persist because of lax laws and very little meaningful prosecution. “Nobody has gone to jail or put any teeth into the law,” he said. According to a 2011 Government Accountability Report, the Indian Arts and Crafts Board received almost 650 complaints alleging misrepresentation of Indian-produced goods between 2006 and 2010. The same report revealed that the IACB determined 150 of these complaints involved apparent law violations, and it determined 117 needed more investigation, but no cases were filed in federal court as a result.
In actuality only five people have been prosecuted for violation of the Indian Arts and Crafts Act between 1990 and 2010. Of those five cases, two were dismissed and the other three resulted in sentences ranging from probation to 13 months jail time.
Eriacho said arbitrary custom laws make it easy for merchants to pass off imported articles of “Native American-style” jewelry as authentic Indian art and jewelry. At one time imported art and jewelry incorporating traditional Native American design motifs had to be permanently marked with its country of origin. But, in order to accommodate the demands of the North American Free Trade Agreement (NAFTA), U.S. Customs penciled in an exception to the permanent marking rule. That exception allows imported Native American-style jewelry and art to enter the country with a removable sticker if it's determined that it is “technically commercially infeasible” to place a permanent marking on the product.
Eriacho insists that some Native Americans don’t make the situation better by buying imported goods, removing the stickers and passing them off as authentic. He adds that it is important for the artist to disclose the product's mode of creation since hand-crafted or -assembled products don't retain value as well as products made entirely by hand. “This makes it difficult to explain to customers the importance of buying something made entirely from scratch, instead of going to a hobby or bead shop and buying all these beads and materials and stringing it up,” said Eriacho.
Both Eriacho and Bobrick agree that dealers and consumers need to be educated about what they're buying. But Bobrick said one thing he's learned in 42 years in the industry is that it isn’t always easy to tell the difference between real and fake goods. “There are some things that are obvious, but if they do it well enough, anyone can be fooled,” said Bobrick; he has even heard of instances where an artist has visited a shop and seen counterfeit versions of their own work—complete with signature—for sale.
The report states that very few of these cases are prosecuted because many federal and state agencies rely on education rather than law enforcement to curtail misrepresentation of Indian arts and crafts. One IACB method of investigating cases was sending a warning letter to alleged offenders. The letters are generalized to businesses that sell Indian arts and crafts, detailing the requirements for the sale of Indian arts and crafts and defining possible penalties. But the GAO report concludes these efforts are thwarted by public ignorance of the law, law enforcement priorities and the cost of legal action.
According to the GAO report, outdated and limited data makes it difficult to determine the size of the Indian arts and crafts market and to what extent misrepresentation occurs. It states that a comprehensive study to estimate the size of the market would be “complex and costly and may not provide reliable results.”
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