{"id":563,"date":"2006-01-01T15:18:54","date_gmt":"2006-01-01T20:18:54","guid":{"rendered":"http:\/\/www.danziger.com\/articlesnews\/?p=25"},"modified":"2006-01-01T15:18:54","modified_gmt":"2006-01-01T20:18:54","slug":"on-sacred-ground","status":"publish","type":"post","link":"https:\/\/danziger.com\/?p=563","title":{"rendered":"On Sacred Ground"},"content":{"rendered":"

Tribal artifacts may be the world’s cultural footprints, but if you want to reproduce them, you’d better watch your step.<\/strong><\/p>\n

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.
\nHe began by handing us a dog-eared business card that read \u201cDealer in Sacred Indigenous Art.\u201d 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. \u201cI handle artifacts like this,\u201d he said. \u201cIt\u2019s a very hot market right now.\u201d
\nThat much we knew. We asked where the prayer stick came from. \u201cI found it on a camping trip,\u201d he said. Right. \u201cIt\u2019s used for Native American rituals. Any problem with my selling it?\u201d
\nThe 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: \u201cWhoever 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.\u201d
\nIn addition, the feathers on Michael\u2019s 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.
\n\u201cI thought NAGPRA was intended to apply only to federal agencies and museums, not individuals,\u201d Michael protested.
\nTechnically he was right. NAGPRA\u2019s 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 \u201cceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.\u201d
\n\u201cNo court would enforce such a vague definition!\u201d railed Michael, pointing his prayer stick at us accusingly.
\nHere, 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\u2019s 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.
\nMichael was undeterred. \u201cCan I at least sell replicas of the prayer stick? I could manufacture cheap knockoffs in China and say that they\u2019re made by real Indians for kids.\u201d
\nPutting 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 \u201cIndian made.\u201d The purpose of this 1935 law was to improve the economic status of Native Americans by curtailing the sale of imitation art.
\n\u201cHow about if I say the prayer sticks are \u2018Navajo-inspired\u2019?\u201d 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. \u201cThe carpet uses sacred, secret Aboriginal imagery,\u201d he explained. \u201cI want to sell copies around the world! They would make terrific doormats, maybe with sacred texts written on the back.\u201d
\nHis 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 \u201cless busy.\u201d The designs that Bethune appropriated included sacred Aboriginal images, which the clan allowed to be reproduced only by trained and approved artists.
\nThose 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\u2019s 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.
\n\u201cHow about selling reproductions of indigenous art outside Australia?\u201d Michael persisted.
\nWe 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\u2019t allow the registration of trademarks based on Maori imagery or text if the marks offend the Maori people.
\nThere 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.
\n\u201cIs indigenous art fully protected here in the U.S.?\u201d 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.
\nMoreover, we didn\u2019t believe that the government\u2019s position would change anytime soon. At a meeting of the WIPO in 2000, the U.S. delegation observed: \u201cThere 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.\u201d
\nMichael was no fool. A shady dealer, perhaps, but no fool. \u201cIn that case, I think I\u2019ll take my chances exploiting indigenous art right here in the U.S.,\u201d he declared. \u201cWhat do you think about a line of Aboriginal-inspired doghouses?\u201d
\nAt 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.
\nWe should have known.<\/p>\n

Download This Article Now<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[],"class_list":["post-563","post","type-post","status-publish","format-standard","hentry","category-articles-brothers-in-law"],"_links":{"self":[{"href":"https:\/\/danziger.com\/index.php?rest_route=\/wp\/v2\/posts\/563","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/danziger.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/danziger.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/danziger.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/danziger.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=563"}],"version-history":[{"count":0,"href":"https:\/\/danziger.com\/index.php?rest_route=\/wp\/v2\/posts\/563\/revisions"}],"wp:attachment":[{"href":"https:\/\/danziger.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=563"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/danziger.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=563"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/danziger.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=563"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}