On Sacred Ground

Tribal artifacts may be the world’s cultural footprints, but if you want to reproduce them, you’d better watch your step.

We should have known better. When Michael called for a consultation, he was oddly evasive about his business affairs, but we agreed to see him anyway.
He began by handing us a dog-eared business card that read “Dealer in Sacred Indigenous Art.” Before we could ask what this meant, he opened his knapsack and pulled out an old prayer stick made of what looked like wood and eagle feathers. “I handle artifacts like this,” he said. “It’s a very hot market right now.”
That much we knew. We asked where the prayer stick came from. “I found it on a camping trip,” he said. Right. “It’s used for Native American rituals. Any problem with my selling it?”
The answer was yes. When it comes to indigenous or tribal artifacts, issues of cultural sensitivity and economic exploitation can come into play. In the U.S., for example, the Native American Graves Protection and Repatriation Act (NAGPRA), which protects Native American burial sites, states: “Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit any Native American cultural items obtained in violation of [NAGPRA] shall be fined in accordance with this title, imprisoned not more than one year, or both.”
In addition, the feathers on Michael’s prayer stick might run afoul (as it were) of the Migratory Bird Treaty Act of 1918, which prohibits the sale of any migratory birds or their parts. U.S. law generally bans the possession or sale of eagle feathers other than for the religious purposes of Native American tribes.
“I thought NAGPRA was intended to apply only to federal agencies and museums, not individuals,” Michael protested.
Technically he was right. NAGPRA’s original purpose was to repatriate objects currently held by agencies and museums. But the law was later amended to apply to anyone who traffics in Native American cultural items. According to the law, these are defined as “ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.”
“No court would enforce such a vague definition!” railed Michael, pointing his prayer stick at us accusingly.
Here, he was wrong. In U.S. v. Tidwell, a federal court ruled in 1999 that the law was not overly vague. The case involved Rodney Tidwell, a dealer who had sold Native American cultural items, including a set of priest’s robes and 11 Hopi masks, to an undercover investigator with the Bureau of Indian Affairs. The court reasoned that since Tidwell was a dealer in Native American artifacts, as opposed to an unsuspecting tourist, he should have realized that he might be violating NAGPRA. Tidwell unsuccessfully argued that NAGPRA was unconstitutionally vague and that the items he sold were neither covered by the law nor authentic to begin with. He was sentenced to 33 months in prison.
Michael was undeterred. “Can I at least sell replicas of the prayer stick? I could manufacture cheap knockoffs in China and say that they’re made by real Indians for kids.”
Putting aside the cultural insensitivity of his plan, we warned him that the Indian Arts and Crafts Act imposes criminal and civil penalties for falsely marketing products as “Indian made.” The purpose of this 1935 law was to improve the economic status of Native Americans by curtailing the sale of imitation art.
“How about if I say the prayer sticks are ‘Navajo-inspired’?” he asked. We conceded that this might actually work, so long as the public was not misled by the word Navajo. His scheme illustrated a flaw in the Crafts Act: It allows products to bear Native American designs as long as they are not marketed as having been made by Native Americans. At the end of our meeting, we thought we were done with Michael, but he returned a few days later carrying a stunning carpet decorated with brilliant stars and mountains. “The carpet uses sacred, secret Aboriginal imagery,” he explained. “I want to sell copies around the world! They would make terrific doormats, maybe with sacred texts written on the back.”
His idea sounded all too reminiscent of Milpurrurru v.Indofurn Pty. Ltd., in which a court in Australia ruled that Aborigines must be compensated for the unauthorized use of their designs. The 1994 case involved an Australian entrepreneur, Brian Alexander Bethune, who was sued by Aboriginal artists after he instructed a factory in Vietnam to reproduce Aboriginal designs on carpets but to make the designs “less busy.” The designs that Bethune appropriated included sacred Aboriginal images, which the clan allowed to be reproduced only by trained and approved artists.
Those designs were, in fact, so sacred that they were intended to be viewed only during certain ceremonies, and only by those who had reached a certain level of initiation. In addition, the tags on Bethune’s carpets falsely stated that Aboriginal artists would be paid royalties for the use of their designs. In ruling for the artists, the Australian court found that Bethune was pirating cultural heritage, and most offensively, encouraging people to step on the carpets, thereby literally treading upon the most sacred Aboriginal images.
“How about selling reproductions of indigenous art outside Australia?” Michael persisted.
We cautioned him that at least 22 countries (mostly developing ones) protect the traditional works of indigenous peoples. For instance, Tunisia affords copyright protection to works of national folklore; Nigeria criminalizes the distortion of an expression of folklore; Panama offers collective ownership registration of certain traditional creations; and New Zealand won’t allow the registration of trademarks based on Maori imagery or text if the marks offend the Maori people.
There have also been efforts by international organizations such as United Nations and the World Intellectual Property Organization (WIPO) to protect indigenous works, including the joint 1982 Model Provisions for National Laws for the Protection of Folklore Against Illicit Exploitation and Other Prejudicial Actions (which have not been fully adopted by any country), and in 1999, fact-finding missions to 28 countries to identify the needs of holders of traditional knowledge.
“Is indigenous art fully protected here in the U.S.?” Michael asked. Clearly, no. U.S. copyright law is poorly suited to protecting indigenous works because it offers only short-term protection (the life of the author plus 70 years) and is premised on individual rights and originality. However, indigenous art requires perpetual protection and is based on communal ownership of works that are passed down from generation to generation with little or no variation.
Moreover, we didn’t believe that the government’s position would change anytime soon. At a meeting of the WIPO in 2000, the U.S. delegation observed: “There were so many different expectations, goals and native systems for approaching ownership and the transgression of ownership of traditional knowledge that a useful, enforceable global system would be virtually impossible to create.”
Michael was no fool. A shady dealer, perhaps, but no fool. “In that case, I think I’ll take my chances exploiting indigenous art right here in the U.S.,” he declared. “What do you think about a line of Aboriginal-inspired doghouses?”
At that point, we told Michael that we were not comfortable acting as his attorneys. We sent him on his way, and mailed him a bill for our time. His check arrived months later, and it bounced.
We should have known.

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