Of kitsch and kachinas: a critical analysis of the Indian Arts and Crafts Act of 1990.

• Author: Hapiuk, William J., Jr.

INTRODUCTION

Measured by the symbolic arithmetic of identity politics, 1990 certainly seemed a good year to be an Indian.(1) On prime-time television, Native American actress Elaine Miles portrayed the serene, wise, and mystical Marilyn Whirlwind on the Emmy Award-winning series "Northern Exposure." In Hollywood in October of that year, actor and director Kevin Costner released "Dances With Wolves" to rave reviews of his "sensitive" portrayal of Indians. Filmed in both English and Lakota (with subtitles!), the movie would later capture the 1990 Academy Award for Best Picture.(2) There was even an Indian on Capitol Hill. Ben Nighthorse Campbell, a Northern Cheyenne award-winning jewelry maker, served as Congressman from the state of Colorado.

And in the closing days of the 101st Congress, a bill sponsored by Campbell--the Indian Arts & Crafts Act CIACA" or "Act")--aimed at ridding the $800 million Native American handicraft industry of cheap imitations imported from overseas, passed both houses unanimously.(3) On November 29, 1990, President George Bush signed the IACA into law, thereby making it a federal felony punishable by a quarter million dollar fine and five years in prison for anyone other than Indians recognized by an Indian tribe to sell (or even display for sale) handicrafts as "Indian.(4) Plus, the Act provides Indians with a private cause of action to go after counterfeiters and imitators in federal court.(5) One member of Congress hailed the IACA as "a truly bipartisan effort that will provide much needed support and protection for an irreplaceable part of American culture, and a valuable,' national resource: native American arts and crafts."(6)

Visibility in the dominant culture. Political representation in the halls of Congress. Legislation aimed squarely at economic justice and cultural preservation. It seemed to add up to a very good year indeed.

Appearances, though, can be deceiving. And events in the last month of 1990 proved the Indian Arts and Crafts Act to be just such a deception. Two days after President Bush signed the law, the IACA claimed its first casualty.

On December 1, 1990, the Museum of the Five Civilized Tribes in Muskogee, Oklahoma, closed its doors, uncertain whether it, as a museum, would fall under the broad and vague language of the Act and, if it did, fearful that its collection might not pass muster under the new law. While the museum was certain that "real" Indians had created the art it displayed, it was uncertain whether these artists would be deemed "Indian" under the terms of the IACA. Simply put, the museum had never inquired whether each artist whose work it displayed was formally recognized by a tribe.(7) Because of the "stringent" fines, the museum "did not want to be a test case [under the IACA]."(8) The museum director explained the closure decision: "If you took the law as ... written ... it had what I call a witch-hunt or bounty-hunter clause. That allowed an individual to come in, and if they saw what they considered a violation [of the IACA], they could file a complaint--a civil lawsuit or a criminal charge."(9) Two days on the books, and already, the IACA had generated controversy--an ominous portent of things to come.

In fact, if calculated today, after a decade of twists and turns, the Indian Arts & Crafts Act of 1990 adds up to a law of good intentions and unintended consequences. It is more than a little ironic that this law, sponsored by the only Native American member of Congress and aimed self-consciously at preserving the Native American way of life, has become a source of contention, strife, and discord among Native Americans.

The most vexing problem lies in the Act's definition of "Indian" as only those persons enrolled in, or certified as an artisan(10) by, a federally or state-recognized Indian tribe.(11) To be sure, Indian tribes are the bedrock institutions of federal Indian law,(12) and federal courts have consistently affirmed the authority of an Indian tribe to determine its own membership as one of a tribe's most basic powers.(13) Defining "Indian" by reference to tribal enrollment, then, appears imminently reasonable, if not legally compelled. Problems arise, however, because this is not the only way that federal law defines "Indian,(14) and even under this rubric, variation in enrollment criteria among Indian tribes results in wide-ranging definitions of "Indian.(15) Moreover, ethnological definitions that take into account ancestral and kinship factors, and racial definitions that take into account blood quantum, do not necessarily map onto legal ones, thereby making some persons "Indian" ethnically or racially but not politically or legally.(16)

As the leading treatise on Indian law explains, when "tribal membership as determined by the Indian tribe or community itself" is the "essential element" of the definition of "Indian," "a person of complete Indian ancestry who has never had relations with any Indian tribe may be considered a non-Indian for some legal purposes."(17) The regulation of the Native American arts and crafts market by the IACA is just such a legal purpose. When it comes to making and selling Indian arts and crafts, a non-enrolled Indian ceases to be Indian.

There are no definitive statistics on the number of individuals of Indian descent who are not enrolled, or who are not eligible to be enrolled, in an Indian tribe.(18) There are myriad reasons why individuals might face these situations, many due to vagaries of federal or tribal law.(19) Nor is there any way to know precisely how many of these individuals, for whatever political or ideological reason, simply refuse to seek enrollment in a tribe,(20) and, while it should go without saying, there is no law requiring them to do so.

All of these individuals, however, are forbidden under the IACA to offer for sale any art or craft product as "Indian." Worse, should they do so, the IACA criminalizes their behavior and subjects them to potential felony prosecution by the state and civil action by authorized "Indian" plaintiffs or the Attorney General. Ironically, Ben Nighthorse Campbell, as the award-winning jewelry maker in his pre-politician days, would have found himself facing the same legal plight, had the IACA been in effect then: For most of his jewelry-making career he was not enrolled in an Indian tribe; he became an enrolled member of the Northern Cheyenne tribe only two years before embarking on his political career.(21)

Compounding matters, for much of its existence, the IACA was legally unenforceable. Although the threat from overseas was characterized in 1990 as so dire as to call for immediate action, the IACA was unenforceable for its first six years, as the Indian Arts & Crafts Board ("IACB"), the tiny Interior Department agency charged with carrying out much of the IACA, lacked the funds and workforce even to write the required regulations that interpret the Act. Despite its legal unenforceability, the IACA still had a "chilling effect" and led to ad hoc "enforcement."

In another ironic twist, the first civil cases filed under the IACA were not brought against the nefarious importers from overseas--or even the pesky unenrolled Indians. Instead, like any rational civil plaintiff, the first Indian tribe to bring suit under the IACA went after deep-pocket defendants. In 1998, the Ho-Chunk Nation sued national retailer J.C. Penney for $240 million and national discount chain Wal-Mart for $120 million in federal court in Illinois.(22)

Ironies aside, this note tells the story of an ill-conceived law and historically ignorant, philosophically unreflective lawmaking. While at first blush the tortured life of the Indian Arts & Crafts Act appears to be a story ripped out of the headlines about 1990s-style identity politics, political correctness, and strident multiculturalism, it can also be understood as a story about the difficulties of employing legal strategies for cultural survival. And it is the story of the struggle for identity in a globalizing world marked by changes in labor and capital that can impact even the smallest group of Indians on a reservation in the Southwest.

Informed by historical inquiry and drawing on critical theory, this note examines the notion of "traditional Indian arts and crafts." Such an exercise reveals that a complex, rich, inventive mixing and a web of interactions-entrepreneurial, cooperative, appropriative--among a host of institutions, individuals, and the state have created what we now understand as "Indian arts and crafts." In light of this analysis, the underlying premise of the IACA--that the making and selling of Indian arts and crafts must be restricted to tribally affiliated Indians because those arts and crafts represent ancient tribal traditions--begins to lose its strength.

This note concludes that the Indian Arts & Crafts Act of 1990 is flawed because it fails to acknowledge the historical development of both Indian tribes and Indian arts and crafts and to appreciate fully the dialogical ways that contemporary Indian identity is constructed. Moreover, the note questions the efficacy of litigation and prosecution as tools for cultural survival. This note argues that the IACA should largely be replaced by a regime that would authorize the Indian Arts & Crafts Board to work in consort with Indian tribes to develop appellation-of-origin-like certification marks for handicrafts. This solution would both (1) distinguish "genuine" goods in the marketplace and (2) enable tribes to preserve the cultural heritage they bring to arts and crafts. Importantly, this solution would remove the IACA's stranglehold on the word "Indian," so that autonomous individuals would be free to use the term in the construction of their identities.(23)

Part I lays out the problems that the Native American arts and crafts industry faced in 1990 and summarizes the provisions of the Indian Arts & Crafts Act. Part II presents a...