Northwest Coast Indigenous Art: Theft and Appropriation

An open letter by Lucinda Turner

For the last several years, thousands of people, both Indigenous artists and settler allies, have collaborated to safeguard Northwest Coast (NWC) Indigenous art from appropriation and theft. While we have seen some successes, Canada needs to step up and support these efforts, so that this serious issue can be addressed on a larger scale. We believe that it is time for the Canadian government to introduce much-needed legislation and policies to uphold and protect Indigenous intellectual property and copyrights through stricter laws and enforcement, enabling Indigenous artists to support their families, communities, and cultural heritage through the production and sale of their historic and unique art form.

BACKGROUND

For 26 years, I carved in partnership with Nisga’a Nation master artist Norman Tait, a collaboration that ended upon his death in 2016. When I began seeing counterfeits of his work being copied and sold on the internet, I became the administrator of two Facebook groups: Fraudulent Native Art Exposed, and More [1] (with more than 3,700 members), which focuses on the appropriation and theft of predominantly NWC Indigenous art, and Native Art – Direct from Artists [2] (with more than 9,400 members), which promotes authentic NWC art directly from artists. I was also a contributing author to a recent Department of Canadian Heritage publication titled: Promoting and Protecting the Arts and Cultural Expressions of Indigenous Peoples. A Compendium of Experiences and Actions (2021), which brought together artists, scholars, and experts to create a sourcebook for addressing the rampant ethnic fraud in the Canadian Indigenous arts and culture sector.

The internet has created boundless opportunities for artists to sell and promote their artwork, but it has also opened the door to the large-scale marketing of fraudulent, copied, or stolen images of NWC Indigenous art and ceremonial artifacts by companies with no affiliation to these artists.

Additionally, authentic Indigenous products are often categorized and sold alongside non- Indigenous made “knock-off” art, further confusing consumers and allowing for extensive fraud to continue unabated.

Over the last four years, members of Fraudulent Native Art Exposed, and More have succeeded in the removal of more than 1,000 items such as masks, T-shirts, bed covers, coffee cups, pillows, and 3D laser schematics (just to name a few) from internet and social media sales sites. These items had either copied or significantly replicated existing NWC images and designs without the knowledge or consent of the original artists. We were able to “takedown” these stolen designs by sending official Digital Millennium Copyright Act (DMCA) [3] letters to the offending sellers or directly to the host companies advertising on the internet. However, whether the ads are “taken down” or not, the artists are rarely compensated for the theft of these images and the practice continues while the original artists go unrecognized and exploited.

FRAUD

After the discovery of thousands of Indigenous children buried in unmarked graves around residential schools in 2021, hundreds of thefts and misrepresentations flooded the online market, duping well-intentioned buyers trying to support the “Orange Shirt Initiative.” This same exploitation also happened with the “Missing and Murdered Indigenous Women and Girls” (MMIWG) initiatives. Further, many companies who claimed to “donate” or “partially donate” their proceeds had no apparent affiliation with the purported recipients, nor could they confirm their charitable claims.

“NATIVE–STYLE” SEMANTICS AND OTHER LOOPHOLES

Canadian tourist sites, gift shops, and other vendors regularly market non-Indigenous-made artifacts and artworks as “Northwest Coast style,” misleading consumers into thinking they are buying from and supporting local NWC Indigenous artists. Often these artifacts are direct copies of existing, copyrighted, and published works. It is on such a massive scale that containers of “Native-themed” masks and totems (as much as 350,000 kg at one time) carved or manufactured overseas (primarily in Indonesia and the Philippines) have been shipped, unimpeded, through the Port of Vancouver before being distributed and sold internationally. Some honest sellers identify these objects as made in Indonesia or Southeast Asia upon initial sale. However, this is still not a sufficient remedy as many of those objects inevitably end up being sold as authentic on the secondary market through eBay or even reputable auction houses and then circulate in the market as “maker unknown.” Ultimately, Canada needs to prevent fraudulent “knock-offs” from entering Canada and educate secondary market sellers and consumers on how to identify and avoid these counterfeits.

Another problem we find is non-Indigenous artists who try to create “Native-inspired” designs using Formline, [4] a key feature of NWC Indigenous art. These images are frequently advertised to give the impression that they are authentic, Indigenous-made designs. Formline design is unique to the Northwest Coast. Its rules are complex, and it is held in high esteem.

Formline illustrates the history and stories of the people of this region and is guarded as “traditional cultural expressions” (TCE). It hurts immensely to see this exquisite art form degraded into comical and disrespectful caricatures of itself. Without stronger Federal legislation in place, it is practically impossible to stop the marketing and sale of these types of uninformed and inauthentic copies that misrepresent this art form worldwide.

REMEDIES AND SUGGESTIONS

After speaking to ten lawyers in both Canada and the United States, I was advised that these artists are generally limited to enforcing Canadian copyright law one image at a time. In the US, the Indian Arts and Crafts Act [5] criminalizes misrepresentation and copying of Indigenous art and even has a “Fake Art Hotline” to facilitate easy reporting. In 2018, an American jewelry store owner (Nael Ali) [6] and his cohorts were sentenced under this act with the owner receiving six months in a federal penitentiary and fined over $9,000 USD.

These practices of theft and misrepresentation hurt NWC Indigenous communities and misinform and confuse the public about the origin of the art. The US and Australia [7] have made advances in this area, and we insist that Canada can, and must, do more to protect the livelihood and cultural identity of Canadian Indigenous artists, too. Canada needs legislation, strategies, and monetary penalties in order to curtail and discourage these destructive practices.

To summarize, I am including a preliminary list of suggestions to help address these problems:

1. Canadian Indigenous art needs clear identification to make it easier for a buyer to determine if the work is authentic or not. NWC Indigenous artists need a system similar to the Canadian “Igloo Tag Trademark” or Alaskan “Silver Hand” [8] that protects Inuit and Alaska Native artists from fraud, cultural appropriation, and theft, by distinguishing authentic Inuit and Alaska Native works from those using Arctic imagery.
2. The introduction of an Indigenous Artists Registry [9] using blockchain technology would enable a direct link to an artist’s portfolio and biography, providing artists with a place to document designs, control ownership, establish provenance, and track works as they are sold.
3. Canada needs to criminalize and enforce the fraudulent acts of purporting to donate proceeds or parts of proceeds to Indigenous communities or associations and not following through, as we have found in many of the “Orange Shirt Day” and MMIWG initiatives.
4. Canada can encourage the sale of Indigenous art by eliminating Federal and Provincial sales taxes on these items while retaining (or even increasing) taxes on “Native-Inspired” pieces.
5. Information pamphlets on where and how to buy authentic Indigenous art should be distributed in places such as high-traffic tourist areas and on BC Ferries to help teach consumers how to identify authentic art, and what questions to ask such as: where the product was created, the artist’s name and First Nation affiliation, and whether or not the artist receives royalties from the sale.

On behalf of Indigenous artists and their allies working to address this complex issue, Canada must step up and legislate to support Indigenous artists and their communities. Together we can honor the provenance of the exquisite and unique art that continues to define our history and national heritage.

Sincerely,
Lucinda Turner
November 19, 2021

NOTES

• 1. Facebook Group: Fraudulent Native Art Exposed and More
• 2. Facebook Group: Native Art – Direct From Artists
• 3. The Digital Millennium Copyright Act (DMCA): The DMCA is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes the production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works (commonly known as digital rights management or DRM). It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet and allows a remedy for the copyright holder to remove their unauthorized works without retaining a lawyer. More info.
• 4. Formline design: “The connected pattern of painted, positive space that creates and defines Northwest Coast design images. Formlines alter their thickness, usually as they bend around a corner, which introduces tension and release in traditional designs (Northwest Coast Formline Design Definitions and Vocabulary) Formline design is part of a living culture…It surrounds us, and it holds us up. Our Northwest Coast art is ingrained in the social fabric and oral histories of our clans.” Rico Lanáat´ Worl, A Basic Guide to Northwest Coast Formline Art). More info (PDF).
• 5. The Indian Arts and Crafts Act (Act) of 1990 (P.L. 101-644): A truth-in-advertising law that prohibits misrepresentation in the marketing of Indian art and craft products within the United States. It is illegal to offer or display for sale or sell any art or craft product in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States. For a first-time violation of the Act, an individual can face civil or criminal penalties up to a $250,000 USD fine or a 5-year prison term, or both. If a business violates the Act, it can face civil penalties or can be prosecuted and fined up to $1,000,000 USD. More info.
• 6. Violating the Indian Arts and Craft Act (Nael Ali): “A New Mexico jewelry store owner who sold fake Native American jewelry was sentenced Tuesday. The U.S. Attorney’s Office in New Mexico says Nael Ali was sentenced to six months in prison and a year of supervised release for selling Filipino-made jewelry as Native American-made. He is also ordered to pay $9,048.78 USD in restitution for violating the Indian Arts and Craft Act (IACA). The IACA prohibits the offer or display for sale or the sale of any good in a manner that falsely suggests that it is Indian produced an Indian product or the product of a particular Indian or Indian tribe.” The tremendous contributions made by Native Americans to the cultural and artistic heritage of our nation must be preserved and protected,” said New Mexico US Attorney John C. Anderson in a news release. “This case and the continuing investigation demonstrate the Justice Department’s commitment to safeguard the rich culture and heritage of New Mexico’s Pueblos and Tribes while promoting confidence in New Mexico’s rich art market.” Source: US Department of Justice.
• 7. Australian Indigenous Art Code: “The Indigenous Art Code was developed in the first instance by the National Association for the Visual Arts and then by the Australia Council for the Arts, who worked closely with an Industry Alliance Group made up of artists, Indigenous art centers, commercial art galleries, public art galleries, auction houses and visual arts peak bodies; including the Association of Northern, Kimberley and Arnhem Aboriginal Artists, Umi Arts, Ananguku Arts, Desart, Australian Commercial Galleries Association, NAVA and the Australian Indigenous Art Trade Association.” The Indigenous Art Code | Full text of the Indigenous Art Code (PDF)
• 8. Igloo Tag Trademark (Canada) and Alaskan Silver Hand Program (USA):
  • a) Established in 1958 by the Canadian government, the Igloo Tag Trademark has been the internationally recognized symbol of authenticity for Inuit visual arts. For more than six decades, this iconic mark has been administered by way of authorized Inuit art distributors and dealers, protecting artists from cultural appropriation, fraud, and theft and allowing collectors to buy with peace of mind. Today, there are six active legacy licensees as well as additional newly signed licensees that are permitted to use the tag as a guarantee of authenticity. Igloo Tag Trademark (Canada) | Authentic Indigenous (USA)
  • b) The Alaska State Council on the Arts has implemented a similar permit, known as the Silver Hand Program. It requires that users of the Silver Hand must be a member of a federally recognized Alaska Native tribe. Misuse of the seal or permit is a misdemeanor and punishable under Alaska State law. Silver Hand Program (USA)
• 9. Indigenous Art Registry
  • a) The Authentic Indigenous Arts Resurgence Campaign (The “ARC”) Shain Jackson, Coast Salish Artist. The ARC is an Aboriginal Tourism B.C. (“AtBC”) initiative aimed at promoting and supporting authentic Indigenous artworks in the retail and wholesale marketplace. Authentic Indigenous Resurgence Campaign (currently under review)
  • b) The National Indigenous Art Registry is a joint effort between Tony Belcourt, former president of the Métis Nation of Ontario, and Mark Holmes, director of G52 Municipal Services, the service provider for the register’s technology, in consultation with Indigenous artists. Still in the early stages of creation, the registry is designed to give artists a place to document designs, control ownership, and track works as they are sold and resold using a blockchain registry. More info.

Links

• Indigenous Identity Act Introduced to Stop Ethnic Fraud, FAAM
• Promoting and Protecting Indigenous Arts and Cultural Expressions: Experiences and Best Practices in Canada, presented by Julie Boyer (downloadable PDF in French and English)
• Facebook Group: Fraudulent Native Art Exposed and More
• Facebook Group: Native Art – Direct From Artists
• Indigenous Art Code, Australia
• Indian Arts and Crafts Act, Indian Arts and Crafts Board, US Department of the Interior
• IACB Source Directory of Arts and Crafts Businesses, USA