Protecting the Intellectual Property Found in Florida’s Indian Arts and Crafts

Robert H. Thornburg, July 6, 2015

The Indian Arts and Crafts Act of 1990 makes it illegal to falsely indicate or suggest that a craft is Indian produced, an Indian product, or is affiliated with a certain Indian tribe. Accordingly, the Act is a truth in advertising law preventing merchants from offering or displaying items for sale in a manner that misleads consumers into believing there is an Indian affiliation.

For instance, if a business marketed itself through a sign that reads “Indian Jewelry,” unless a member of a Federally recognized Indian tribe, or a certified Indian artisan, had made the jewelry, the business would violate the Indian Arts and Crafts Act. Also, if something was advertised as “Hopi Jewelry” a member of the Hopi tribe, or a certified artisan thereof, would have needed to produce it to comply with the law.

This last example could prove problematic in the state of Florida because of the large market for products affiliated with the Florida State Seminoles. As you may, or my not, know the Seminole Indian tribe has a formal agreement with Florida State allowing the University to use its name and various Seminole symbols and images. However, an entrepreneurial jewelry maker who hawks goods from a tent during tailgates with a sign saying “Seminole Jewelry” could end up in legal trouble. Unless this entrepreneurial jeweler was a member of the Seminole tribe, or a certified Indian artist by the Seminole tribe, the use of “Seminole Jewelry” could falsely denote an affiliation with the Seminole tribe and confuse consumers.

The courts have interpreted the Act to impose strict liability on violators, so even unintentionally falsely suggesting an Indian connection can have disastrous consequences. If the jeweler mentioned above was operating as an individual, he could face penalties up $250,000, and if a business engaged in this type of activity a penalty of up to $1,000,000 could be enforced. Violators could also face up to five years in prison.

In short, arts, crafts, and jewelry must be carefully marketed when there is a potential for consumers to mistakenly believe the item has any sort of Indian affiliation. If you believe someone is falsely marketing Indian arts and crafts, or you have been accused of violating the Act, please contact the firm to discuss your rights.

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