Running Head: Policy Analysis 1

Policy Analysis

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Policy Analysis 2

Contents
Purpose and Implementation of the Act..........................................................................................2

Important Aspects of the Act...........................................................................................................3

Protection and Promotion of Art in India....................................................................................3

Self-Sufficiency for Tribes..........................................................................................................4

Cultural Protection of Native Americans....................................................................................4

Consumer’s Protection.................................................................................................................4

Major Problems with the Act...........................................................................................................5

Problems with “Indian” Definition..............................................................................................5

Contravention Upon Tribal Sovereignty...................................................................................10

Contravention of Freedom of Speech and Expression..............................................................11

Loss of Tribal Self-Sufficiency in the Long Run......................................................................12

Conclusion.....................................................................................................................................13
Policy Analysis 3

Purpose and Implementation of the Act

Several tribes expressed their dissatisfaction with the lack of appropriate
implementation of the 1935 Act, urging Congress to interfere. Reps. Jon Kyi (R-Ariz.) and Ben
Nighthorse Campbell (D-Colo.) started work on laws to address the issue of fraudulent artworks
following the expressed apprehensions of these Indian people. On April 17, 1989, they presented
the United States House of Representatives with the original implementation of the Indian Arts
and Crafts Act. The law was originally introduced as a replacement for the 1935 Indian Arts and
Crafts Act[ CITATION Kla18 \l 1033 ].

The 1935 Act's terms were completely overhauled, with additional litigation punishments
introduced. The initial bill merely modified the sentence lengths to one year for the first crime
and one and half years for the second offense. In the original proposal, the fine terms were not
amended. Representative Kyi's proposal included a description of the term "Indian" as well. Sen.
John McCain (R-Ariz.) introduced the same proposal in the Senate.

The bill was referred to the Committee on Interior and Insular Affairs and the Committee
on the Judiciary from the House floor. A field hearing was held in August 1989 in Santa Fe, New
Mexico, by the Committee on Interior and Insular Affairs (the Santa Fe hearing). Representatives
from the Indian Arts and Crafts Board, the local United States Attorney's office, members of
certain Indian tribes, and Indian artists were among those who spoke during the hearing. Twenty-
five people testified, with topics ranging from the definition of the term "Indian" to the necessity
of the Act and who would be protected by it[ CITATION Woo17 \l 1033 ].

In November 1989, the entire Interior Committee assessed the proposal in the context of
the hearing testimonies and recommended that it be passed with some clauses changed. The
proposal then moved via the Judiciary Committee, where it was predicted that it would pass if
one of its subcommittees supported a replacement. The proposal was then ready to be
reintroduced as well as voted on again. Numerous significant changes were made to the proposal
as it moved via the committee procedure.

For the first infraction, a person faces a punishment of up to $250,000 and 5 years in jail,
while a person other than a person faces a fine of up to $1,000,000 and five years behind bars.
Following that, the sanctions for successive breaches of the Act were reduced to a maximum
Policy Analysis 4

punishment of $1 million and up to 15 years in jail for people, and a maximum fine of $5 million
for anybody other than a person. The final draft included civil sanctions such as treble losses and
attorney's costs for a successful claimant.

The term "Indian" had been re-defined as well. Following the revised interpretation of
Indian, which encompasses anybody who is a part of a provincial or nationally authorized
community, communities can recognize non-enrolled individuals as Indian craftsmen. Those
were just the substantial changes to the proposal in the parliamentary stage[ CITATION Cha21 \l
1033 ].

The proposal was then renewed in the House of Representatives. The proposal was
approved on September 27, 1990, after three lawmakers spoke in favor. Before enacting the
proposal as modified, the Senators added a few small tweaks. The House of Representatives
agreed to the Senate's changes. The proposal was delivered to the President and enacted into law
on November 29, 1990, after the Senators approved the final form.

Important Aspects of the Act

The Indian Arts and Crafts Act's primary goal is to defend Indian artisans as well as art
buyers from the influx of counterfeit artworks into the Indian art sector. By establishing this law,
Congress attempted to advance various additional good aims while using its right to control
business with Indians. The Act was enacted in the hopes of promoting Indian self-sufficiency,
protecting Indian customs and traditions, and preventing Asian imports from invading local
marketplaces.

Protection and Promotion of Art in India

The Act's first and most important purpose is to preserve and encourage Native American
artists who could otherwise be priced out of the market by cheap knockoffs.  Several Native
Americans rely primarily on the sale of artworks and handicrafts to make money.  Because
replica artworks and handicrafts are mass-produced, they may be marketed at a lesser cost. The
Indian artists' revenue is gradually declining as a result of the imitations' overselling. If the
economy continues to deteriorate, future generations will be deterred from studying conventional
methodologies, and Native American artisans may go extinct.
Policy Analysis 5

The Act provides Native Americans with support and motivation to continue creating
historic Indian artworks and handicrafts, thereby expanding their business options. The Act aims
to put a stop to heartless and money-hungry companies that abuse and denigrate Native
American individuals' culture and religion by the means of artistry for centuries[ CITATION
Wat18 \l 1033 ].

Self-Sufficiency for Tribes

This precaution against the commercial manipulation of counterfeit arts and crafts blends
in nicely with the state's overarching purpose of Indian self-sufficiency. An overarching concept
of encouraging Indian self-sufficiency was promoted over the Reagan presidency and into the
Bush presidency. The Act provides Indians with the means to seek recourse for themselves by
litigation consequences. The Act further supports a sector that contributes huge amounts of
money to India's economy. The convergence of these variables is beneficial to India's ultimate
self-sufficiency strategy.

Cultural Protection of Native Americans

The Act also has the intention of safeguarding Indian culture. Many of the artworks
created by Indians in the United States are made with time-honored methods. Rep. Robert
Kastenmeier (D-Wis.) calls this cultural and intellectual phenomenon an "inimitable aspect of
American civilization." Price cuts may compel Indians to take shortcuts and reduce the time
spent on everybody of artwork to stay afloat financially, reducing the authenticity of the artwork.
Furthermore, if Indians are priced out of the market, their skills and abilities will no longer be
discussed in subsequent years and will be gone entirely[ CITATION Geb21 \l 1033 ].

Consumer’s Protection
The Act's ultimate goal is to provide welfare for consumers. Annually, millions have
been spent by consumers for things they assume are genuine Indian artwork and handicrafts.
These people later discover that what they bought was only a knockoff. Customers would be able
to distinguish real Native American arts and crafts from imported or misrepresented counterfeits
if there was a better trademark system in place. The Act's clauses operate as a disincentive to
deceptive sales tactics, providing additional security for these items' customers. Finally, the
Indian Arts & Crafts Act aims to safeguard all components of the artisan business in India.
Policy Analysis 6

Major Problems with the Act

The Indian Arts and Crafts Act has a noble purpose, which almost everybody
acknowledges. The method used by the legislators to achieve this objective is creating and will
continue to create, so many issues that the good intentions may be eclipsed by the negative
consequences. Representative Kastenmeier described the Indian Arts and Crafts Act as "a solid,
generally inoffensive bit of law" during congressional discussion. This remark could not be more
from the truth following the statute's passage. Significant numbers of Indians have protested the
Act, which has resulted in significant internal fighting amongst Indians[ CITATION Nel17 \l
1033 ].

Problems with “Indian” Definition

The omission of some Indians by the Act's extremely restricted definition of "Indian" is
perhaps the most contentious issue linked with the Indian Arts and Crafts Act. To qualify,
individuals should be a resident of a nationally or state-recognized Indian community. As a
result, many well-known artists who've already long considered themselves to be Indian artists
suddenly fall beyond the Act's description of "Indian." The bill's creators were well anticipated
that this section of the Act would've been contentious. The administration of Rep. Ben
Nighthorse Campbell has acknowledged that for some Native Americans, confirming their
Indian origin would be hard. Rep. Jon Kyi stated in the Santa Fe committee that he had been
cognizant that the term "Indian" had to be expanded, but that he did not want to eliminate
authentic Native American from the bill[ CITATION Gon19 \l 1033 ].

Millions of people will be excluded if the concept of Indian is based on ethnic affiliation.
The Dawes Act rolls, which are considerably far from precise or comprehensive, were used by
many tribes to determine their participation. For several circumstances, most individuals are
unable to verify their Indian origin. Adoptees, those who have lost their credentials, and those
who do not consider they must be obliged to demonstrate their ancestry to the state are all barred
from community participation. As a result, there are numerous legal justifications for not being a
registered indigenous member, making the Indian Arts and Crafts Act exclusionary.

Those who belong to communities with a matriarchal or paternal lineage registration structure
are the first to be considered. That is, based on the community, a child's registration on the
registers would be based on the mother's or father's tribal groups. Since an individual could have
Policy Analysis 7

a patriarchal family mother and a matriarchal father, this presents major complications. This
individual would be 100% Indian but disqualified for membership in any tribe.

The varied blood percentage restrictions imposed by various communities are also
another source of worry in the subject of various community registration standards. For tribal
membership, one tribe may demand only one sixty-fourth blood component, while another
community may condition precedent to one-half Indian blood. This allows one person to be
classified as "Indian," while someone with equal or higher Indian bloodlines from a different
ethnic group is not[ CITATION Bro20 \l 1033 ].

Another hilarious explanation for a person's non-tribal membership is that the community
may not be "recognized" by the state. The national govt has put an end to several tribes. The
national govt used to have the objective of eliminating tribal sovereignty to integrate
communities into "white culture." Even though this legislation was revoked, its legacy persists.
During the dismissal period in the 1950s, the national govt disbanded 113 communities,
according to the Congressional Research Service.

Only 78 of the 113 tribal communities have been recovered to "recognized" prestige,
abandoning at least 35 "de-legitimized" ethnic groups without acknowledgment that the govt is
aware of. Several existing communities are contesting identification of these communities
because it could represent a reduction in governmental operations and financing if these
communities are given official approval. The dispute persists that these individuals are just as
much Indian as members of recognized communities, yet they could face jail time if they
proclaim as Indian under the Indian Arts and Crafts Act.

The reality that their forefathers did not endorse the community rolls is perhaps the most
important reason why many persons of Indian origin are unable to join a tribe. There are a
variety of explanations for why several Native Americans did not register the rolls. The white
administration was viewed with suspicion by many. Each moment they accepted a contract with
the authorities, their property was snatched off from them the next thing they noticed. Others
resided far away from where the tribe registers had to be completed and may have never known
of them[ CITATION Moy18 \l 1033 ].
Policy Analysis 8

Others were concerned about the consequences of claiming their genuine Indian
background, such as their children being sent to faraway schools, having a guardian assigned to
run their commercial activities and sell their land, and being compelled to work in factories in
the East by the government. Ultimately, people who joined the rolls at the period in history when
enrolment occurred were at grave risk. Furthermore, people whose forefathers declined to accept
the rolls must not be held responsible for the actions of third-party decades afterward.

The United States Supreme Court may, nevertheless, uphold this discrimination against
individuals from the Indian Arts and Crafts Act purely because they are not enrolled members of
a tribe. Historically, the Supreme Court has directed proposed regulation to prohibit individuals
in ways that would violate the Fourteenth Amendment's equal protection clause if it weren't for
the government's policy of safeguarding Indian communities.

The case of Morton v. Mancari is frequently referenced to support the argument that the
term "Indian" refers to a political rather than a racial difference. In Morton, the Supreme Court
affirmed legislation that gave the Bureau of Indian Affairs "Indian priority" in hiring. The Court
found that Indians had been sought out and given preferential consideration across history. This
is simply the nature of the national government's government-to-government interaction with
Indian tribes. The categorization in this instance was not racial discernment, according to the
Court. The Court said in a statement that the priority was for participants of a political
organization[ CITATION Ben17 \l 1033 ].

The Court went on to say that many people who could be classified as Indians racially
would be barred from this choice, making it a political one. As a result, a priority for members of
an administratively recognized tribe could be regarded a political difference to draft a federal act,
and so would be immune to an equal protection challenge.

Because the partiality was not racial discrimination, the Morton Court was not required to
use the "strict scrutiny test" for equal protection concerns. The Court stated that the "rational
relationship test," which is significantly less severe, would be the right criterion to employ in this
case. The Morton Court, therefore, stated that because the Bureau of Indian Affairs priority
served a vital administrative goal, it was immune from an equal protection challenge.
Policy Analysis 9

Yet, in the instance of the Indian Arts and Crafts Act, the logic in Morton may not be
convincing. Morton's logic is founded on several flawed assumptions. The first flawed argument
is that the term "Indian" exclusively refers to political allegiance. A race of humans described as
Indians have been recognized by the scientific community. The second flawed justification is
that many other legislations about Indians treat them as a racial category. A white person adopted
into a community has also been considered a non-Indian, even though this person was a
participant of the tribe's political organization. These difficulties cast doubt on the Supreme
Court's ruling that one can only be an Indian if one is a member of a tribe's political body.

In its addendum, the Morton Court advances the notion that Indians are a racial category.
Some Indians would be disqualified from a predilection for Indians based on tribal affiliation,
according to the Court. This terminology recognizes the presence of a community of individuals
who are Indian by race but not by ethnicity. The Supreme Court's categorical declaration that the
term "Indian" is not a racial epithet fails to stand up to inspection[ CITATION Bou21 \l 1033 ].

The communities' standards for determining tribal participation are generally known to
the national govt. These criteria are primarily focused on racial characteristics. These measures
would almost certainly be ruled down on constitutional grounds if enacted immediately by the
national govt. By relying on community participation as a criterion, the administration is
inadvertently promoting tribalism.

The communities' standards for determining tribal participation are generally known to
the national govt. These criteria are primarily based on racial characteristics. These measures
would almost certainly be ruled down on equal protection concerns if enacted directly by the
national govt. By utilizing tribe affiliation as a criterion, the government is effectively employing
racial norms without explicitly imposing race as a criterion. Even though it is a two-step
procedure, the Court should find that the government's awareness of the tribal racial prerequisite
is equivalent to the direct application of those criteria.

In several cases involving Indian legislation and equal protection, a white person has
claimed that the laws have violated their rights. It was always simple for the Court to explain its
reasoning in terms of Congress's special commitment to protect Indians and how this justified the
legislation. The tables could be turned in a potential court challenge based on the Indian Arts and
Crafts Act. This may be a case brought about by a member of the Indian racial group. The Indian
Policy Analysis 10

Arts and Crafts Act is unique in that it forbids some Indians from declaring to be of Indian
descent. The legislation was passed by Congress to protect the Indian arts and crafts business,
which includes the labor of these Indians. From the perspective of someone who is racially
classified as Indian, the equal protection case appears to be stronger and more likely to
win[ CITATION Ram17 \l 1033 ].

The Morton Court's reasoning may limit the test case, which will almost certainly arise
from the implementation of the Indian Arts and Crafts Act. The Act would almost certainly be
found constitutional if the Morton analysis was adopted blindly. The preference established in
the Morton case differs significantly from the distinctions established in the Indian Arts and
Crafts Act. Because of the onerous disparities that would come from concluding that "Indian" is
purely a political distinction, these distinctions may allow the Act to be declared unconstitutional
for violation of equal protection[ CITATION Rey17 \l 1033 ].

Most likely, the architects of the Act were aware of these issues and attempted to address
them by including a section that allowed tribes to certify an artist as an Indian artist under the
Act's terms. For numerous reasons, this certification provision is insufficient. First, there is a
significant time gap between the passage of the Act and the creation of the corresponding
regulations. Many communities have yet to certify individuals because they are unsure how to
proceed until the regulations are finalized. The Act was passed in November 1990, but the
process of developing implementing regulations had not yet begun as of October 1993. The time
it will take to create these regulations has been projected to be between nine months and a year.
Many artists and artisans who hoped to get certified so they wouldn't be deemed false or
fraudulent and disqualified from certain exhibits have been left without redress as a result.

Second, the length of time it may take to process the certificates is an issue. Several tribes
have begun certifying artists, even though regulations have yet to be enacted. This process,
according to artists who have gone through it, is slow and inconvenient. 148 The Act does not
specify which tribe a person must apply to for certification. The Act just mentions "an Indian
tribe" but does not specify which tribe. The Act does not address other issues, such as whether
tribes can certify someone who is not Indian at all. The answer to these issues could be found in
the universal standards that will be established during the implementation phase. Because of the
Policy Analysis 11

potential impact on tribal sovereignty, which will be examined infra, this is not a viable solution[
CITATION Nag17 \l 1033 ].

There's also the issue of tribes refusing to certify someone. The tribes have sole authority
over this certification. They could refuse to certify someone at their discretion. Some artists
within the tribe may be able to persuade the tribe to withhold certification to keep non-enrolled
Indians out of competition. In addition, tribes may be hesitant to certify more persons as Indians
for fear of losing other benefits. Overall, there are a variety of reasons why a tribe can decline
certification, leaving someone who should have been protected under the Act with no alternative
except to stop referring to themselves as Indian artists.

Finally, many do not cooperate with the idea of going to the tribes and begging for a
certification. These folks are certain of their Indian ancestry and believe that they do not require
a certificate to prove it. Many of these people are descendants of those who believed that to be
Indian, they did not need to sign the rolls many years ago. For these individuals, the Act's
certification measures are not a solution to the issue it has created. As a result, the certification
provisions aren't a solution to the issues presented by the Act's definition of "Indian."

Contravention Upon Tribal Sovereignty

The Indian Arts and Crafts Act's second flaw is that it violates Indian tribal sovereignty to
such an extent. Indian tribes should be able to influence policies that affect a significant portion
of their economic stability. The Indian Commerce Clause contends that Congress has the
authority to regulate Indian arts and crafts. The original intent for this language in the
Constitution, however, puts this argument on a thin foundation[ CITATION Gou18 \l 1033 ].

The Indian People's Protection Act is based on the idea of safeguarding Native
Americans. The goal of the act appears to mimic the paternalistic aspect of the original Act,
despite Congress changing the phraseology from "Indian wards of the Government" to "Indian
individuals." Many people argue that this Act is an excellent example of the government
legislating in areas where it has no authority to do so. Under the Constitution, tribes have the
authority to govern their affairs. Many Indians believe that tribal governments should be in
charge of dealing with the problem of counterfeit arts and crafts.
Policy Analysis 12

The Act's definition of "Indian" is another area where tribal sovereignty is being eroded.
Indian tribes have sole authority over who is and isn't an Indian. The bill's drafters were aware of
this privilege and attempted to include a certification clause that would allow Indian tribes to
decide who should be permitted to call themselves Indian and who should not[ CITATION
Zen19 \l 1033 ].

This section allows tribes to certify individuals who claim to be of Indian descent but are
not currently members of the tribes. However, this clause does not address the harm to
sovereignty. The Indian Arts and Crafts Board has already requested that tribes create a unified
methodology for determining who is eligible for certification as an Indian artist. This
homogeneity criterion will almost certainly be included in the rules. This means that the tribes do
not have control over who is and is not considered an Indian under the Act's requirements.

Contravention of Freedom of Speech and Expression

The potential for violation of freedom of speech and expression is the Act's third main
flaw. The freedoms guaranteed by the First Amendment are among the most prized by the people
of the United States. All government regulations that have the effect of limiting free expression
must be drafted in the least restrictive manner possible. Statutes must not be so ambiguous that a
person's First Amendment rights must be waived for fear of breaking an ambiguous statute. In a
variety of ways, the Indian Arts and Crafts Act may have the effect of restricting free speech.

To begin with, the Act restricts freedom of speech by having a direct impact on Indian
artists who are not tribal members. These people may be driven to quit making art, either because
they are afraid of being fined or imprisoned if their work is sold, or because their work(s) would
be devalued if they are dubbed "fake" or "phony" Indians. This would be a blatant infringement
on their right to free expression, as the Act forbids them from making their artistic
works[ CITATION Bro18 \l 1033 ].

The artist's discussion of his or her heritage in connection with his or her art is the second
area in which the Act restricts free speech. This Act has the effect of preventing non-tribal
Indians from discussing their Indian background concerning their art. Non-enrolled Indian artists
could be prosecuted for discussing their heritage and cultural background concerning their art,
whereas enrolled Indian artists could be allowed to do so. Certain people are barred from
speaking openly about their heritage and culture concerning their profession under the Act. This
Policy Analysis 13

restriction is imposed on no other group. For fear of violating the Indian Arts and Crafts Act,
these people should not be forced to give up their First Amendment rights.

The final consequence of the Indian Arts and Crafts Act's reduction in freedom of
expression is the suffocation of creativity on the part of all Indian artists. The evolving American
society is having a significant impact on Indian art. Traditional Indian arts and craft practices
will continue to thrive, but many Indian artists will be unconstrained in their creative pursuits by
these traditions. The Indian Arts and Crafts Act may have the unintended consequence of
suffocating this new wave of creativity. Under the Act, government trademarks would be limited
to traditional genres of Indian art. The term "Indian product" in the Act will almost certainly be
limited to traditional arts and crafts. These constraints may inhibit Indian artists who want to
experiment with new materials and forms of artistic expression. This suffocation of creativity
would affect all Indian artists, not just those who are not enrolled[ CITATION Wes18 \l 1033 ].

Loss of Tribal Self-Sufficiency in the Long Run

Another important issue with the Indian Arts and Crafts Act is the potential loss of Indian
self-sufficiency in the long run.  The promotion of Indian tribal self-sufficiency was one of the
purposes of this legislation. Ironically, the Act may have the long-term consequence of eroding
the self-sufficiency that it was designed to defend in the first place. This devastation could take
place in a variety of ways.

Many artists would be forced to close their doors on the first level. Unless the artist can
establish his or her Indian ancestry, many art galleries will refuse to sell the work. The Act has
already driven several artists out of business, even though the implementation procedures have
not yet been written. Several Indians' direct loss of livelihood may be a violation of the US
Constitution under the Fifth and/or Fourteenth Amendments. These Indians are being robbed of
their livelihoods purely because of their lack of ancestry documentation. On a bigger scale, if the
Indians who would be prohibited from the shows are well-known, this could result in a loss for
all artists who would have benefited from the consumers who would have been lured to the show
by the famous artist's works[ CITATION Jan18 \l 1033 ].

On another level, tribal self-sufficiency may be harmed as a result of the act's infighting
among Indian people. In the fall 1990 issue of Business Alert, a publication published by the
First Nations Development Institute, the tremendous benefits in the Indian arts and crafts
Policy Analysis 14

business that could be accomplished through cooperation are described. The Indian people can
only realize the full potential of the arts and crafts business if they work together. However, the
Indian Arts and Crafts Act generates significant infighting among Indians. The process of
implementation will almost certainly pit artists against the artist.

Lastly, Act could result in the closure of numerous museums and galleries, as well as the
disruption of many art exhibitions. Many Indian painters exhibit and sell their work primarily in
these galleries, shows, and museums. When the Act was passed, many museums and galleries
closed for a profitable period of the year to investigate whether any of their pieces were in breach
of the Act. The fact that many arts and crafts sales vehicles are being interrupted cannot be good
for the sector as a whole. In general, the Indian arts and crafts industry are significant in the
Indian population. Even a little portion of this market could be harmful to the Indian
community's self-sufficiency[ CITATION Tre181 \l 1033 ].

Conclusion
In conclusion, if the Act is upheld, the meaning of "Indian" should be expanded. People
who are ethnically Indian and have always been thought of as such should be included in the
definition. This widening of the concept may be accomplished via the implementation
regulations, which are expected to be released in the following months. If an amendment or
repeal is required, that action should be done. Individuals with Indian ancestry should not have
their rights violated for the sake of combating counterfeiting of Indian arts and crafts. These
people, who make up a large part of India's arts and crafts industry, should be accommodated and
allowed to claim their genuine Indian ancestry.
Policy Analysis 15

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