[Federal Register Volume 61, Number 204 (Monday, October 21, 1996)]
[Rules and Regulations]
[Pages 54551-54556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26876]


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DEPARTMENT OF THE INTERIOR

Indian Arts and Crafts Board

25 CFR Part 309

RIN 1090-AA45


Protection for Products of Indian Art and Craftsmanship

AGENCY: Indian Arts and Crafts Board (IACB), DOI.

ACTION: Final rule.

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SUMMARY: This rule adopts regulations to carry out Public Law 101-644, 
the Indian Arts and Crafts Act of 1990. The regulations define the 
nature and Indian origin of products that the law covers and specify 
procedures for carrying out the law. The trademark provisions of the 
Act are not included in this rulemaking and will be treated at a later 
time.

EFFECTIVE DATES: November 20, 1996.

FOR FURTHER INFORMATION CONTACT:
 Meridith Z. Stanton or Geoffrey E. Stamm, Indian Arts and Crafts 
Board, Room 4004-MIB, U.S. Department of the Interior, 1849 C Street, 
NW., Washington, DC 20240, telephone 202-208-3773 (not a toll-free 
call).

SUPPLEMENTARY INFORMATION:

Background

    The Act of August 27, 1935 (49 Stat. 891; 25 U.S.C. 305 et seq.; 18 
U.S.C. 1158-59), created the Indian Arts and Crafts Board. The Board is 
responsible for promoting the development of

[[Page 54552]]

American Indian and Alaska Native arts and crafts, improving the 
economic status of members of Federally-recognized tribes, and helping 
to develop and expand marketing opportunities for arts and crafts 
produced by American Indians and Alaska Natives.
    The 1935 Act adopted criminal penalties for selling goods with 
misrepresentations that they were Indian produced. This provision, 
currently located in section 1159 of title 18, United States Code, set 
fines not to exceed $500 or imprisonment not to exceed six months, or 
both. Although this law was in effect for many years, it provided no 
meaningful deterrent to those who misrepresent imitation arts and 
crafts as Indian produced. In addition, it required ``willful'' intent 
to prove a violation, and very little enforcement took place.
    In response to growing sales in the billion dollar U.S. Indian arts 
and crafts market of products misrepresented or erroneously represented 
as produced by Indians, the Congress passed the Indian Arts and Crafts 
Act of 1990. This Act is essentially a truth-in-advertising law 
designed to prevent marketing products as ``Indian made'' when the 
products are not, in fact, made by Indians as defined by the Act.

Public Participation

    The Indian Arts and Crafts Board published the proposed rulemaking 
for the Indian Arts and Crafts Act of 1990 on October 13, 1994. 59 FR 
51908-51911. As the Federal Register omitted several key lines from the 
Enforcement section 309.3, the Federal Register published a correction 
on October 18, 1994. 59 FR 52588.
    In addition to publication, several thousand copies of the proposed 
rulemaking were distributed to interested parties, including every 
Federally-recognized Indian tribe.
    The Board received 36 public comments on the proposed rulemaking, 
and each was carefully reviewed, analyzed, and considered. These 
comments are grouped by issues and Board responses in the following 
summary.

Summary and Analysis of Public Comments

    A broad range of respondents expressed their support of the 
proposed regulations. These comments emphasized the crucial 
contribution of art and craft work production and sales to the economic 
development of Indian individuals and tribes throughout the nation.

Overall Comments

    Several comments raised the issue of what is a reasonable boundary 
between marketing statements that are simply truthful and statements 
that are clearly misleading. One respondent expressed concern that the 
Act and proposed regulations prohibit an artist who is not a member of 
an Indian tribe from truthfully describing his or her Indian heritage 
as part of the discussion of his or her art work. The regulations do 
not prohibit any statements about a person's Indian heritage that are 
truthful and not misleading in the marketing of that individual's work.
    One comment asked whether an individual, who is neither enrolled 
nor certified as an Indian artisan, is permitted under the Act to use 
the term ``Non-Government Enrolled Descendant'' or its abbreviation, 
``NGED,'' in conjunction with the name of an Indian tribe to market his 
or her work. Considered as a whole, this phrase and its abbreviation 
are misleading. The capitalization implies some sort of official 
standing, and the word ``enrolled'' is positive. However, the truth is 
exactly the opposite: the individual is not officially recognized by, 
and is not enrolled in, the tribe named.
    One comment questioned the treatment of persons of various degrees 
of Indian ancestry who are active in the art market, but are not 
members of tribes. As described in section 309.3 of the Section-by-
Section Comments, Congress in the Act addressed this situation by 
leaving it to the tribes to decide whether to certify as Indian 
artisans for purposes of the Act individuals who have some degree of 
ancestry of that tribe but are not tribal members. This tribal 
certification method also is discussed in section 309.4 of the 
regulations. A person is permitted under the regulations to make a 
truthful statement, in connection with marketing of an art or craft 
product, that he or she is of Indian ``descent'' or particular tribal 
``descent''.
    Several respondents questioned the absence of regulations 
implementing the Act's trademark provisions and recommended that a 
supplementary rule be proposed for comment, to carry out the trademark 
section, before final publication of the regulations. This 
recommendation has not been adopted. The Indian Arts and Crafts Board 
is not prepared to carry out the trademark section of the Act at this 
time. Although the trademark provisions may be desirable in their own 
right, they are not necessary to the protections covered by these 
regulations. As stated previously, the trademark provisions of the Act 
will be treated at a later time.
    One comment recommended and advocated changes in both the proposed 
regulations and the Act on the grounds that they are unconstitutional. 
Another comment asked for a repeal of the Act and proposed regulations, 
as they are a violation of the freedom of speech of all ``Indian 
Americans.'' These comments have not been adopted either. While 
regulations can interpret and clarify the Act, regulations cannot 
change the Act. Furthermore, the regulations do not prohibit any 
individual, marketing enterprise, or other vendor from truthfully 
representing the art or craft products that they offer or display for 
sale or sell. The regulations define the nature and Indian origin of 
products protected by the Indian Arts and Crafts Act of 1990, a truth-
in marketing law, from false representations. They also specify how the 
Indian Arts and Crafts Board will interpret certain conduct for 
enforcement purposes.
    Finally, several comments recommended that the regulations be 
reissued in proposed form for further comment before final publication 
of the regulations to carry out the Act. A broad range of comments was 
received and carefully considered. Appropriate revisions and 
refinements have been adopted without fundamental change to the 
approach of the proposed regulations. Accordingly reissuance in 
proposed form is not warranted.

Section-by-Section Comments

Section 309.1  How Do These Regulations Carry Out the Indian Arts and 
Crafts Act of 1990?

    One response asked how the legislation affects arts and crafts sold 
in business establishments. Another stated that the ``middle man'' 
should be held accountable for how the product is marketed.
    Section 309.1 of the regulations covers these concerns. It states 
that the Act regulates products offered or displayed for sale, or sold 
as Indian produced, an Indian product, or the product of a particular 
Indian, or Indian tribe, or Indian arts and crafts organization within 
the United States. This section does not limit the marketing vehicles 
covered by the regulations. The Act applies to any offer for sale or 
display for sale, or actual sale by any person in the United States. In 
light of this broad application, section 309.1 is appropriately 
drafted.

[[Page 54553]]

Section 309.2  What Are the Key Definitions for Purposes of the Act?

Definition of Indian, Section 309.2(a)
    One respondent asked that the regulations specifically name Native 
Hawaiians to protect them under the Act. Another wanted individuals who 
have Certificates of Indian Blood, yet are neither on tribal rolls nor 
certified as Indian artisans, to be included under the definition of 
Indian.
    The final regulations do not adopt these suggestions. The Act 
specifically defines who is an Indian protected by the Act. The 
regulations can interpret and clarify the Act but cannot change the 
statutory terms of the Act.
    One respondent expressed concern about state incorporated non-
profit ``Indian'' organizations and their members who are not enrolled 
with state or Federally-recognized tribes, yet present themselves as 
Indian at crafts shows. In addition, adoption was an issue for two 
respondents. One expressed concern that non-Indians, ``adopted by 
Indian spiritual leaders,'' may be permitted to sell their work as 
Indian. Another stated that ``not until the seventh generation'' should 
an adopted tribal member or family have the right to offer their 
handcrafts for sale as Indian.
    The definition of Indian already satisfies these concerns. State 
incorporated non-profit ``Indian'' organizations do not meet the 
definition of Indian tribe under the Act and in section 309.2(e)(1) and 
(2) of the regulations. Membership in a non-profit ``Indian'' 
organization does not meet the definition of Indian under the Act and 
in section 309.2 of the regulations. Furthermore, if an ``Indian 
spiritual leader'' or tribal member adopts an individual, this action 
does not mean that the adopted individual is a member of a state or 
Federally-recognized tribe or is certified as an Indian artisan by a 
state or Federally-recognized tribe.
Definition of Indian Artisan, Section 309.2(b)
    Several respondents suggested that the definition of Indian artisan 
should be clarified to read ``an individual who is certified by an 
Indian tribe as its non-member artisan.'' This clarification has been 
adopted with a minor modification.
Definition of Indian Arts and Crafts Organization, Section 309.2(c)
    Two respondents asked whether section 309.2(c) operates to exclude 
marketing entities, other than Indian arts and crafts organizations, 
from the law and regulations. Several others asserted that the 
definition of Indian arts and crafts organization should include any 
organization set up under tribal law, custom or authority, as well as 
under any other legal authority.
    The Act broadly applies to the marketing of arts and crafts by any 
person in the United States. The reference to Indian arts and crafts 
organization as a protected group is not intended to suggest that the 
Act's regulation does not apply to all marketing activities. In 
addition, the Act's requirement that an Indian arts and crafts 
organization be legally established in order to meet the definition 
includes tribal law.
Definition of Indian Product, Section 309.2(d)
    Several comments stated that the definition of Indian product 
should be more inclusive. One comment stated that the definition should 
be broad enough to include the work of musicians, actors, and writers. 
Another stated it should include all products made by an Indian. 
Several other comments stated that the definition of Indian product 
should also cover any cultural property of an Indian tribe or moiety 
and include a reference to a compatible Indian cultural property law. 
Still another respondent asserted that the proposed regulations 
incorrectly focus on ``what good is made, not who made the good.''
    The final regulations do not adopt these comments. In keeping with 
the Indian Arts and Crafts Board's organic legislation, its primary 
mission, and the Congressional intent of the Act, the Board has 
determined in the final regulations that the Act applies to Indian arts 
and crafts and not to all products generally. However, what constitutes 
an Indian art or craft product is potentially very broad.
    Several comments asked that the words ``or produced'' follow 
``made'' in the definition of Indian product to underscore that art or 
craft is to be broadly construed.
    Within the meaning of the statute, Indian arts and crafts mean any 
art or craft made by an Indian or Indian artisan. As the addition of 
the words ``or produced'' does not significantly enhance the definition 
of Indian product, the final regulations do not adopt this comment.
    Several respondents stated that the 1935 cut off date for products 
regulated by the Act is arbitrary and should be dropped.
    The final regulations do not adopt this comment. The focus on the 
contemporary arts and crafts market is in keeping with the 
Congressional intent of the Act and the legislated mission of the 
Indian Arts and Crafts Board--economic growth through the development 
and promotion of contemporary Indian arts and crafts.
    Two comments asked that proposed section 309.2(d)(ii) be dropped so 
as to exclude from regulation by the Act products of a non-traditional 
Indian style or non-traditional Indian medium. Another comment asked 
that proposed section 309.2(d)(iii) include a reference to the 
difference between handmade, hand painted, and manufactured.
    The final regulations do not adopt these comments. The proposed 
exclusion of products made in a non-traditional Indian style or non-
traditional Indian medium runs counter to the legislative history of 
the Act, as the sponsors of the legislation were clearly aware of the 
evolution of such non-traditional products. The proposed exclusion is 
also inconsistent with a primary mission of the agency charged with 
carrying out the Act--the promotion of contemporary Indian arts and 
crafts. On the issue of production terms, handcrafts are clearly 
defined and anything else is not a handcraft. Additional descriptions 
in this section would make the regulations more complicated, and would 
not measurably improve the purpose of the regulations which is to 
define the nature and Indian origin of products covered by the Act.
    One respondent supported the exclusion of industrial products from 
the proposed regulations, section 309.2(d)(2). Another asked that the 
products under this section be further clarified. Other respondents 
described the industrial products section as unclear and asked that it 
be removed. Upon further review, the exclusion for industrial products 
has been dropped from the final regulations because the provisions 
limiting the reach of the Act to arts and crafts already exclude such 
products.
    Another comment suggested that the regulations incorporate seven 
``classes'' of products, based on the degree of Indianness of the maker 
and whether the product is a replica or import. The final regulations 
do not adopt the proposed classes of goods as they would make the 
regulations greatly more complicated and burdensome, and would not 
measurably improve the main purpose of the regulations which is to 
define rather than to classify the nature and Indian origin of products 
covered by the Act.
    In final form, section 309.2(d) has been mildly reorganized and 
renumbered to improve readability.

[[Page 54554]]

Definition of Indian Tribe, Section 309.2(e)
    One comment asked that all references in the regulations to 
``Indian tribe'', the statutory term drawn from the Act, be revised to 
read ``any federally-recognized tribes(s)'', in recognition of 
consolidated tribes. This comment has not been adopted, as the 
definition of ``Indian tribe'' is provided in the Act, and the 
regulations cannot change the Act. However, all Federally-recognized 
consolidated tribes are, in fact, included in that definition.
    One respondent asked that section 309.2(e)(2) include a provision 
to require state governments to use the same comprehensive tribal 
recognition criteria the Federal government uses for Federal 
recognition. This comment asserted that comprehensive procedures must 
be mandatory to prevent undermining the Act and those it is intended to 
protect. The final regulations do not require the use of comprehensive 
criteria for state recognition of tribes, as this goes beyond the 
authority of the Federal statute and is a matter of state authority. 
Additionally, the regulations do not set criteria for state tribal 
enrollment, as this is beyond the authority of the Federal statute.
    Some comments asked for the addition of language in the regulations 
to include terminated California Indians and ``federally-accepted 
tribal-preemption principles.'' Another asked that the Act protect all 
terminated tribes. These comments are not adopted into the final 
regulations. The regulations cannot change the Act, which makes no 
provision for terminated tribes.
Definition of Product of a Particular Indian Tribe or Indian Arts and 
Crafts Organization, Section 309.2(f)
    One comment suggested the addition of the term ``legally recognized 
Indian tribe'' would help clarify the text of section 309.2(f). Another 
comment recommended the section include language for oversight of 
Indian tribes and arts and craft organizations.
    These comments are not adopted into the final regulations. The term 
Indian tribe is defined earlier, in section 309.2(e), and the intent of 
this section is clear--to simply define the product of a particular 
Indian tribe or Indian arts and crafts organization.

Section 309.3  Interpretation of Statements About Indian Origin of Art 
or Craft Products

    The final regulations clarify that the term ``Indian'' as used 
under the Act includes its market synonym ``Native American.''
    One respondent stated that the regulations should work to prevent 
deceptive advertisements that use the name of a tribe to market a 
product, when the product is not made by a member of that tribe. 
Concern also was expressed about the use of phrases that refer to the 
``style'' of a particular Indian tribe when the items are not made by 
artisans of that tribe, but imitate the work of that tribe. The 
respondent believed that the names of tribes as either nouns or 
adjectives should be for the exclusive use of the members of those 
tribes.
    The Act and section 309.1 of the proposed regulations specifically 
state that it is unlawful to offer or display for sale or sell any good 
in a manner that falsely suggests it is the product of a particular 
Indian or Indian tribe or Indian arts and crafts organization. Section 
309.3(a) also regulates the use of the unqualified name of an Indian 
tribe, and the unqualified term Indian, in connection with an art or 
craft product. However, the use of a tribal name in conjunction with 
the work ``style'' is not prohibited by the Act or the regulations, as 
it is not necessarily misleading. The rights of tribes to control the 
use of their names, qualified and unqualified, is an issue of cultural 
patrimony and is beyond the scope of these regulations.
    Several responses dealt with the issue of foreign products. Two 
respondents expressed concern over their perception of the undermining 
of permanent country-of-origin markings by importers of imitation 
Indian arts and crafts. One respondent expressed concern about foreign 
merchandise falsely marketed as ``South American Indian'' while another 
questioned the need of businesses to differentiate between products 
made by members of tribes resident in the United States and by members 
of foreign tribes.
    The topic of permanent country-of-origin marking is beyond the 
scope of the Act and regulations. Under the Omnibus Trade Bill, Public 
Law 100-418, the U.S. Customs Service published regulations and 
oversees the requirement for permanent country-of-origin marking on 
imported Indian-style jewelry and other arts and crafts (19 CFR 134.43 
(c)-(d).
    Although the concern about products falsely marketed as South 
American Indian is beyond the scope of the regulations, identification 
of products of foreign Indian tribes is covered in section 309.3(b). 
The regulations require that products marketed in the United States 
must clearly show the name of the foreign country of the producer's 
tribal ancestry if the name of a tribe is used.

Section 309.4  Certification of Indian Artisans

    One respondent expressed concern that the proposed regulations do 
not offer a ``designation'' for descendants that are not tribal 
members. A second expressed concern for individuals who are raised on 
reservations, but who are not tribal members because they do not meet 
tribal blood quantum requirements.
    The Act adopts tribal certification as the exclusive approach to 
these situations, and the regulations simply carry out this 
Congressional mandate. Truthful statements may be made about Indian or 
tribal ancestry.
    A number of comments supported the proposed regulations' measure of 
flexibility in the certification process and the placement of 
responsibility for the determination of individual cases upon an 
appropriate tribal authority.
    Other respondents stated that the provision for tribal 
certification of Indian artisans under the proposed regulations should 
be clarified. The majority of these respondents were concerned that 
section 309.4 as proposed could allow a tribe to certify a person as an 
Indian artisan who is in no way connected with the tribe and who is not 
even of Indian ancestry. Those respondents maintained that the statute 
and its legislative history support the conclusion that Congress 
intended that Indian tribes should be able to certify persons as Indian 
artisans only if those persons were, first, of Indian ancestry and, 
second, of Indian ancestry connected with the certifying tribe. One 
response further suggested that to be eligible for certification one 
must prove lineal descent from a tribal member.
    The final regulations adopt most of these comments. As amended, 
section 309.4 clarifies that to be eligible for certification as an 
Indian artisan by a particular tribe, the individual must be of the 
Indian ancestry of that tribe. The final regulations clarify that the 
certification must be documented in writing by the governing body of an 
Indian tribe or by a certifying body delegated this function by the 
governing body of an Indian tribe. The certification to be provided by 
the Indian tribe is that the individual is a non-member Indian artisan 
of the tribe.
    Other comments asked that the regulations give Indian tribes 
guidance on procedures for the certification of Indian artists, such as 
documentation. In particular, on comment asked that the regulation also 
specify who within the

[[Page 54555]]

tribe will have authority to make the certification decisions. One 
comment stated that procedural guidance would help prevent misuse of 
authority. Another stated it would encourage tribes to adopt 
certification programs. Others cautioned that care should be taken to 
avoid intrusion on tribal sovereignty.
    While the final regulations clarify the overall requirements for 
certification, in deference to tribal sovereignty the actual 
certification procedures are left to the discretion of tribal 
governments.
    One respondents expressed concern for individuals of various 
degrees of Indian ancestry, who are not tribal members, whose requests 
for Indian artisan certification are denied by the tribe. The 
respondent suggested that recognition of an individual's Indian 
ancestry by a state legislature should be an alternative to tribal 
certification. Another respondent suggested that recognition of an 
individual's Indian ancestry by a local entity, other than a tribe, 
should be sufficient for certification. These alternatives to tribal 
certification are not valid under the Act and are beyond the scope of 
the regulations. Truthful statements may be made about Indian or tribal 
heritage.
    Finally, one respondent asked what specific authority prohibits the 
tribes from charging a fee for certification. This prohibition appears 
in section 107 of the Act (see also 25 U.S.C. 305e note).

Section 309.5  Penalties.

    No comments received. However, language has been added to clarify 
what actions may subject a person to civil and criminal penalties.

Section 309.6  Complaints.

    No comments received.

Drafting Information

    These final regulations were prepared by Meredith Z. Stanton 
(Deputy Director, Indian Arts and Crafts Board) and Geoffrey E. Stamm 
(Director, Indian Arts and Crafts Board).

Compliance With Other Laws

    This rule was not subject to Office of Management and Budget review 
under E.O 12866.
    There is no collection of information in this rule requiring 
approval by the Officer of Management and Budget under 44 U.S.C. 3504.
    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
An unknown number of individuals, small businesses, and tribal 
governments may be affected in some way. These possible effects, such 
as increased demand on tribal governments from some of their members to 
document their status, stem from the statute itself rather than the 
regulations, as the preponderance of the regulations merely reflect 
statutory terms and requirements.
    The Department of the Interior determined that these regulations 
will not have a significant effect on the human environment under the 
National Environmental Policy Act (42 U.S.C. 4321-4347). In addition, 
the Department of the Interior determined that these regulations are 
categorically excluded from the procedural requirements of the National 
Environmental Policy Act by Departmental regulations in 516 DM2. As 
such, there is no need for an Environmental Assessment or an 
Environmental Impact Statement.

List of Subjects in 25 CFR Part 309

    Indians--Arts and crafts, Penalties.

    For the reasons set out in the preamble, 25 CFR Chapter II is 
amended to add part 309 as follows:

PART 309--PROTECTION OF INDIAN ARTS AND CRAFTS PRODUCTS

Sec.
309.1  How do these regulations carry out the Indian Arts and Crafts 
Act of 1990?
309.2  What are the key definitions for purposes of the Act?
309.3  How will statements about Indian origin of art or craft 
products be interpreted?
309.4  How can an individual be certified as an Indian artisan?
309.5  What penalties apply?
309.6  How are complaints filed?

    Authority: 18 U.S.C. 1159, 25 U.S.C. 305 et seq.


Sec. 309.1  How do the regulations in this part carry out the Indian 
Arts and Crafts Act of 1990?

    These regulations define the nature and Indian origin of products 
protected by the Indian Arts and Crafts Act of 1990 (18 U.S.C. 1159, 25 
U.S.C. 305 et seq.) from false representations, and specify how the 
Indian Arts and Crafts Board will interpret certain conduct for 
enforcement purposes. The Act makes it unlawful to offer or display for 
sale or sell any good 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.


Sec. 309.2  What are the key definitions for purposes of the Act?

    (a) Indian as applied to an individual means a person who is a 
member of an Indian tribe or for purposes of this part is certified by 
an Indian tribe as a non-member Indian artisan (in accordance with the 
provisions of Sec. 309.4).
    (b) Indian artisan means an individual who is certified by an 
Indian tribe as a non-member Indian artisan.
    (c) Indian arts and crafts organization means any legally 
established arts and crafts marketing organization composed or members 
of Indian tribes.
    (d) Indian products. (1) In general. Indian product means any art 
or craft product made by an Indian.
    (2) Illustrations. The term ``Indian product'' includes, but is not 
limited to:
    (i) Art works that are in a traditional or non-traditional Indian 
style or medium;
    (ii) Crafts that are in a traditional or non-traditional Indian 
style or medium;
    (iii) Handcrafts, i.e. objects created with the help of only such 
devices as allow the manual skill of the maker to condition the shape 
and design of each individual product.
    (3) Exclusion for products made before 1935. The provisions of this 
part shall not apply to any art or craft products made before 1935.
    (e) Indian tribe means--
    (1) Any Indian tribe, band, nation, Alaska Native village, or any 
organized group or community which is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians; or
    (2) Any Indian group that has been formally recognized as an Indian 
tribe by a State legislature or by a State commission or similar 
organization legislatively vested with State tribal recognition 
authority.
    (f) Product of a particular Indian tribe or Indian arts and crafts 
organization means that the origin of a product is identified as a 
named Indian tribe or named Indian arts and crafts organization.


Sec. 309.3  How will statements about Indian origin of art or craft 
products be interpreted?

    (a) In general. The unqualified use of the term ``Indian'' or of 
the term ``Native American'' or the unqualified use of the name of an 
Indian tribe, in connection with an art or craft product, is 
interpreted to mean for purposes of this part that--
    (1) The maker is a member of an Indian tribe, is certified by an 
Indian tribe as a non-member Indian artisan, or is a member of the 
particular Indian tribe named; and
    (2) The art or craft product is an Indian product.
    (b) Products of Indians of foreign tribes. (1) In general. The 
unqualified

[[Page 54556]]

use of the term ``Indian'' or of the term ``Native American'' or the 
unqualified use of the name of a foreign tribe, in connection with an 
art or craft product, regardless or where it is produced and regardless 
of any country-of-origin marking on the product, is interpreted to mean 
for purposes of this part that--
    (i) The maker is a member of an Indian tribe, is certified by an 
Indian tribe as a non-member Indian artisan, or is a member of the 
particular Indian tribe named;
    (ii) The tribe is resident in the United States; and
    (iii) The art or craft product is an Indian product.
    (2) Exception where country of origin is disclosed. Paragraph (b) 
of this section does not apply to any art or craft for which the name 
of the foreign country of tribal ancestry is clearly disclosed in 
conjunction with marketing of the product.
    (c) Example. X is a lineal descendant of a member of Indian Tribe 
A. However, X is not a member of Indian Tribe A, nor is X certified by 
Indian Tribe A as a non-member Indian artisan. X may not be described 
in connection with the marketing of an art or craft product made by X 
as an Indian, a Native American, a member of an Indian tribe, a member 
of Tribe A, or as a non-member Indian artisan of an Indian tribe. 
However, the true statement may be used that X is of Indian descent, 
Native American descent, or Tribe A descent.


Sec. 309.4  How can an individual be certified as an Indian artisan?

    (a) In order for an individual to be certified by an Indian tribe 
as a non-member Indian artisan for purposes of this part--
    (1) The individual must be of Indian lineage of one or more members 
of such Indian tribe; and
    (2) The certification must be documented in writing by the 
governing body of an Indian tribe or by a certifying body delegated 
this function by the governing body of the Indian tribe.
    (b) As provided in section 107 of the Indian Arts and Crafts Act of 
1990, Public Law 101-644, a tribe may not impose a fee for certifying 
an Indian artisan.


Sec. 309.5  What penalties apply?

    A person who offers or displays for sale or sells a good, with or 
without a Government trademark, 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:
    (a) Is subject to the criminal penalties specified in section 1159, 
title 18, United States Code; and
    (b) Is subject to the civil penalties specified in section 305e, 
title 25, United States Code.


Sec. 309.6  How are complaints filed?

    Complaints about protected products alleged to be offered or 
displayed for sale or sold in a manner that falsely suggests they are 
Indian products should be made in writing and addressed to the 
Director, Indian Arts and Crafts Board, Room 4004-MIB, U.S. Department 
of the Interior, 1849 C Street, NW, Washington, DC 20240.

    Dated: October 15, 1996.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management and Budget.
[FR Doc. 96-26876 Filed 10-18-96; 8:45 am]
BILLING CODE 4310-RK-M