The arbitrary Indian: The making of the Indian Arts and Crafts Act of 1990
Description
Federal 'Indian law' defines and maintains the unique political status of certain American Indian tribes as dependent-but-sovereign nations within the United States. The resulting political separation of these tribes and their members from the dominant society carries socio-cultural implications of interest to anthropologists. The Indian Arts and Crafts Act of 1990 was Congress's response to an ever-increasing flood of imported counterfeit American Indian jewelry, bead-work, and other handcrafts, and secondarily addresses the problem of impostor Indian artists in the United States. The statute prohibits the sale or offering for sale of arts and crafts as Indian-made when they are not. Despite the magnitude of the problem and the Indian initiative behind its enactment, it has generated controversy in the Indian arts and crafts world because it defines 'Indian' and 'Indian tribe' in an arbitrary manner, that is, in a manner not logically connected to the purpose of the statute and contrary to many social usages of those terms. An Indian artist or craftsman must now be a member of a federally or state-recognized tribe or certified by either as an artisan. This requirement of affiliation with a political entity disregards the ancestral, socio-cultural, and historical factors upon which Indian identity is based. The extraordinary difference in legal status between federal and state recognition of tribes and in the degree of meaningful criteria for tribal affiliation by individuals results in an arbitrary process, with arbitrary results, regarding self-identification by an artist or craftsperson The statute works its social mischief in several ways. It confuses political and governmental tribal functions with individual ethnic activity (identifying oneself as Indian in connection with offering one's art for sale) and results in shifts of power relationships. The statutory freezing of the definition of 'Indian' can be argued to create a new type of intellectual property. The Act may create a 'racial' category with the inclusion of state-recognized tribes, and it probably violates the First Amendment's guarantee of freedom of expression. It may also threaten the most precious of the tribes' rights, their sovereignty