	Background

The 1935 Indian Arts and Crafts Act created the Indian Arts and Crafts  Board within Interior to promote the economic welfare of Indian tribes  and individuals through the development of Indian arts and crafts and  through the expansion of the market for the products of Indian art and  craftsmanship. A priority of the Board is the implementation and enforcement of the act’s  provisions to prevent misrepresentation. The Size of the Indian Arts and Crafts Market and the Extent of Misrepresentation Are Unknown

The actual size of the Indian arts and crafts market, and extent of  misrepresentation that is occurring, are unknown, because existing  estimates are outdated, limited in scope, or anecdotal and no national  sources contain the data necessary to make reliable estimates. Conducting  a comprehensive study to estimate the size of the market and level of  misrepresentation would be complex and costly and may not provide  reliable results. For example, the  most recent and relevant national estimates were provided in a 1985  Department of Commerce study. Our analysis of  the methodology used to produce the study, however, found that these  estimates are not only outdated but also unreliable. Many Indian artists, agency officials, and others with whom we spoke who  have knowledge of the national, state, and local Indian arts and crafts  markets offered anecdotal estimates of the size of the Indian arts and  crafts market and the extent of misrepresentation but generally could not  provide reliable support for their estimates. We found that because these data sources  were designed for other purposes and not intended to track the size of the  Indian arts and crafts market or extent of misrepresentation, the  information they contain is not specific or comprehensive enough to be  used for that purpose. Moreover,  neither of these organizations collects information on the sales of goods  by these sellers. To Curtail Misrepresentation of Indian Arts and Crafts, Agencies Have Relied on Educational Efforts over Law Enforcement Actions, but Fundamental Challenges Exist

Federal and state agencies have relied on educational efforts more than  law enforcement actions to curtail misrepresentation of Indian arts and  crafts, but these efforts are hampered by fundamental challenges, such as  ignorance of the law, competing law enforcement priorities, the high cost  of pursuing legal actions, and limitations on the enforcement of customs  regulations. According  to the database, from fiscal year 2006 through fiscal year 2010, the Board  received 649 complaints of alleged violations. The Board’s investigation  of these 649 complaints identified apparent violations of federal or state  laws in 23 percent of the complaints—148 violations of the Indian Arts and  Crafts Act and 2 of state law, but for 61 percent of the complaints— 395 of the 649—the Board, upon investigation, identified no violation of  the federal law or could not make a determination; for example, according  to Board officials, anonymous complaints sometimes do not provide  sufficient information to identify a violation. A Variety of Challenges Exist to Curtailing Misrepresentation

Even with its partnerships and educational and other outreach efforts, the  Board acknowledges that a number of challenges exist to curtailing  misrepresentation of Indian arts and crafts. Attorneys and Interior, FBI,  tribal, and state law enforcement personnel, and it is planning future  training for federal law enforcement officers. Some Potential Options for Protecting Indian Traditional Knowledge and Cultural Expression Exist

U.S. federal and state laws protecting intellectual property do not  explicitly include Indian traditional knowledge and cultural expression  and therefore do not provide adequate protection from misappropriation  or distortion. International Frameworks Exist or Are Under Development to Provide Guidance for Nations Interested in Protecting the Intellectual Property of Indigenous Peoples

Existing international frameworks offer protections for traditional  knowledge, but the United States has not implemented them to date. Other Countries Have Undertaken Protection Actions That Provide Options for Consideration

Options for protecting traditional knowledge and cultural expressions are  also found in the experiences of other countries that have established or  attempted to establish laws and programs to address the issue. New Zealand has also taken steps to protect the intangible intellectual  property of its indigenous groups. Agency Comments

We provided a copy of our draft report to the Departments of Commerce,  Homeland Security, the Interior, and Justice for review and comment. In  their written responses, the Department of Commerce’s U.S. Patent and  Trademark Office and the Department of Homeland Security generally  agreed with the contents of the report and also provided technical  comments, which we incorporated into the report as appropriate. In addition, this report will be available at no charge on the GAO  Web site at http://www.gao.gov.
Why GAO Did This Study

In 1935 the Indian Arts and Crafts Act was enacted, establishing the Indian Arts and Crafts Board as an entity within the Department of the Interior. A priority of the Board is to implement and enforce the act's provisions to prevent misrepresentation of unauthentic goods as genuine Indian arts and crafts. As the market for Indian arts and crafts grew and the problem of misrepresentation persisted, the act was amended to, among other things, enhance the penalty provisions and strengthen enforcement. GAO was asked to examine (1) what information exists regarding the size of the market and the extent to which items are misrepresented and (2) actions that have been taken to curtail the misrepresentation of Indian arts and crafts and what challenges, if any, exist. In addition, this report provides information on some options available to protect Indian traditional knowledge and cultural expressions. GAO analyzed documents and interviewed international, federal, state, and local officials about the arts and crafts market and enforcement of the act. GAO is making no recommendations in this report. In commenting on a draft of this report, the Departments of Commerce and Homeland Security generally agreed with the contents of the report. The Departments of Commerce, Homeland Security, the Interior, and Justice also provided technical comments which were incorporated into the report as appropriate..

What GAO Found

The size of the Indian arts and crafts market and extent of misrepresentation are unknown because existing estimates are outdated, limited in scope, or anecdotal. Also, there are no national data sources containing the information necessary to make reliable estimates. For example, the most often cited national estimates about the size of the market and the extent of misrepresentation come from a 1985 Department of Commerce study. GAO found that not only is this study outdated, but the estimates included in the study are unreliable because they were based on anecdotal information and not systematically collected data. No national database specifically tracks Indian arts and crafts sales or misrepresentation, and GAO found that no other national databases contain information specific or comprehensive enough to be used for developing reliable estimates. Moreover, GAO determined that to conduct a study that could accurately estimate the size of the Indian arts and crafts market and the extent of misrepresentation would be a complex and costly undertaking and may not produce reliable estimates. Federal and state agencies have relied largely on educational efforts rather than law enforcement actions to curtail misrepresentation of Indian arts and crafts, but these efforts are hampered by a number of challenges, including ignorance of the law and competing law enforcement priorities. From fiscal year 2006 to fiscal year 2010, the Indian Arts and Crafts Board received 649 complaints of alleged violations of the Indian Arts and Crafts Act. The Board determined that 150 of these complaints, or 23 percent, involved an apparent violation of the law, and it referred 117 of the complaints for further investigation by law enforcement officers, but no cases were filed in federal court as a result. According to the Board and law enforcement officials, support from law enforcement personnel and others to prosecute these cases has been sporadic because of higher law enforcement priorities. Therefore, the Board has relied primarily on educational efforts to curtail misrepresentation. For example, in response to complaints, the Board sent educational and warning letters to about 45 percent of alleged violators, and it produced educational brochures and participated in other educational efforts for artists, sellers, consumers, and law enforcement officers. GAO identified one arts organization that has successfully used civil actions to curtail misrepresentation, but this approach can be costly and time-consuming. U.S. federal and state laws protecting intellectual property do not explicitly include Indian traditional knowledge and cultural expressions--such as ceremonial dances or processes for weaving baskets--and therefore provide little legal protection for them. Some international frameworks offer protection for traditional knowledge and cultural expressions, but the federal government has not yet undertaken steps to implement these frameworks in the United States. Other countries, like Panama and New Zealand, have taken actions--which offer options for consideration--to protect the intellectual property of indigenous groups.