[Congressional Record Volume 151, Number 92 (Monday, July 11, 2005)]
[Senate]
[Pages S7990-S7991]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCAIN (for himself, Mr. Dorgan, and Mr. Kyl):
  S. 1375. A bill to amend the Indian Arts and Crafts Act of 1990 to 
modify provisions relating to criminal proceedings and civil actions, 
and for other purposes; read the first time.
  Mr. McCAIN. Mr. President, today I rise to introduce a much needed 
amendment to the Indian Arts and Crafts Act. I am pleased to be joined 
by the vice chairman of the Indian Affairs Committee, Senator Byron 
Dorgan, and my good friend and colleague from Arizona, Senator Jon Kyl 
as original cosponsors of this bill.
  This bill expands the existing Federal investigative authority by 
authorizing other Federal investigative bodies, such as the BIA Office 
of Law Enforcement, in addition to the FBI, to investigate cases of 
misrepresentation of Indian arts and crafts. This bill is substantially 
the same as Section 111 of the Native American Omnibus Act, S. 536, 
which passed out of the Committee on Indian Affairs earlier this year. 
This bill also addresses concerns that were raised by the 
administration.
  A major source of tribal and individual Indian income is derived from 
the sale of handmade Indian arts and crafts. Yet, today, millions of 
dollars are diverted each year from these original artists and Indian 
tribes by those who reproduce and sell counterfeit Indian goods. 
However, it is my understanding that few, if any, criminal prosecutions 
have been brought in Federal court for such violations. It is 
understandable that enforcing the criminal law that prohibits the sale 
of Indian arts and crafts misrepresented as an Indian product is often 
stalled by the other responsibilities of the FBI including 
investigating terrorism activity and violent crimes in Indian country. 
Therefore, expanding the investigative authority to include other 
Federal agencies is intended to promote the active investigation of 
alleged misconduct. It is my hope that with this much needed change 
will deter those who dare to violate the act.
  I ask unanimous consent that text of the bill be printed in the 
Record.

                                S. 1375

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Indian Arts and Crafts 
     Amendments Act of 2005''.

     SEC. 2. INDIAN ARTS AND CRAFTS.

       (a) Criminal Proceedings; Civil Actions; 
     Misrepresentations.--Section 5 of the Act entitled ``An Act 
     to promote the development of Indian arts and crafts and to 
     create a board to assist therein, and for other purposes'' 
     (25 U.S.C. 305d) is amended to read as follows:

     ``SEC. 5. CRIMINAL PROCEEDINGS; CIVIL ACTIONS.

       ``(a) Definition of Federal Law Enforcement Officer.--In 
     this section, the term `Federal law enforcement officer' 
     includes--
       ``(1) a Federal law enforcement officer (as defined in 
     section 115(c) of title 18, United States Code); and
       ``(2) with respect to a violation of this Act that occurs 
     outside Indian country (as defined in section 1151 of title 
     18, United States Code), an officer that has authority under 
     section 3 of the Indian Law Enforcement Reform Act (25 U.S.C. 
     2802), acting in coordination with a Federal law enforcement 
     agency that has jurisdiction over the violation.
       ``(b) Criminal Proceedings.--
       ``(1) Referral.--On receiving a complaint of a violation of 
     section 1159 of title 18, United States Code, the Board may 
     refer the complaint to any Federal law enforcement officer 
     for appropriate investigation.
       ``(2) Findings.--The findings of an investigation under 
     paragraph (1) shall be submitted to--
       ``(A) the Attorney General; and
       ``(B) the Board.
       ``(3) Recommendations.--On receiving the findings of an 
     investigation in accordance with paragraph (2), the Board 
     may--
       ``(A) recommend to the Attorney General that criminal 
     proceedings be initiated under section 1159 of that title; 
     and
       ``(B) provide such support to the Attorney General relating 
     to the criminal proceedings as the Attorney General 
     determines appropriate.
       ``(c) Civil Actions.--In lieu of, or in addition to, any 
     criminal proceeding under subsection (a), the Board may 
     recommend that the Attorney General initiate a civil action 
     pursuant to section 6.''.
       (b) Cause of Action for Misrepresentation.--Section 6 of 
     the Act entitled ``An Act to promote the development of 
     Indian arts and crafts and to create a board to assist 
     therein, and for other purposes'' (25 U.S.C. 305e) is 
     amended--
       (1) by striking subsection (d);
       (2) by redesignating subsections (a) through (c) as 
     subsections (b) through (d), respectively;
       (3) by inserting before subsection (b) (as redesignated by 
     paragraph (2)) the following:
       ``(a) Definitions.--In this section:
       ``(1) Indian.--The term `Indian' means an individual that--
       ``(A) is a member of an Indian tribe; or
       ``(B) is certified as an Indian artisan by an Indian tribe.
       ``(2) Indian product.--The term `Indian product' has the 
     meaning given the term in any regulation promulgated by the 
     Secretary.

[[Page S7991]]

       ``(3) Indian tribe.--
       ``(A) In general.--The term `Indian tribe' has the meaning 
     given the term in section 4 of the Indian Self-Determination 
     and Education Assistance Act (25 U.S.C. 450b).
       ``(B) Inclusion.--The term `Indian tribe' includes an 
     Indian group that has been formally recognized as an Indian 
     tribe by--
       ``(i) a State legislature;
       ``(ii) a State commission; or
       ``(iii) another similar organization vested with State 
     legislative tribal recognition authority.
       ``(4) Secretary.--The term `Secretary' means the Secretary 
     of the Interior.'';
       (4) in subsection (b) (as redesignated by paragraph (2)), 
     by striking ``subsection (c)'' and inserting ``subsection 
     (d)'';
       (5) in subsection (c) (as redesignated by paragraph (2))--
       (A) by striking ``subsection (a)'' and inserting 
     ``subsection (b)''; and
       (B) by striking ``suit'' and inserting ``the civil 
     action'';
       (6) by striking subsection (d) (as redesignated by 
     paragraph (2)) and inserting the following:
       ``(d) Persons That May Initiate Civil Actions.--
       ``(1) In general.--A civil action under subsection (b) may 
     be initiated by--
       ``(A) the Attorney General, at the request of the Secretary 
     acting on behalf of--
       ``(i) an Indian tribe;
       ``(ii) an Indian; or
       ``(iii) an Indian arts and crafts organization;
       ``(B) an Indian tribe, acting on behalf of--
       ``(i) the tribe;
       ``(ii) a member of that tribe; or
       ``(iii) an Indian arts and crafts organization;
       ``(C) an Indian; or
       ``(D) an Indian arts and crafts organization.
       ``(2) Disposition of amounts recovered.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     an amount recovered in a civil action under this section 
     shall be paid to the Indian tribe, the Indian, or the Indian 
     arts and crafts organization on the behalf of which the civil 
     action was initiated.
       ``(B) Exceptions.--
       ``(i) Attorney general.--In the case of a civil action 
     initiated under paragraph (1)(A), the Attorney General may 
     deduct from the amount--

       ``(I) the amount of the cost of the civil action and 
     reasonable attorney's fees awarded under subsection (c), to 
     be deposited in the Treasury and credited to appropriations 
     available to the Attorney General on the date on which the 
     amount is recovered; and
       ``(II) the amount of the costs of investigation awarded 
     under subsection (c), to reimburse the Board for the 
     activities of the Board relating to the civil action.

       ``(ii) Indian tribe.--In the case of a civil action 
     initiated under paragraph (1)(B), the Indian tribe may deduct 
     from the amount--

       ``(I) the amount of the cost of the civil action; and
       ``(II) reasonable attorney's fees.''; and

       (7) in subsection (e), by striking ``(e) In the event 
     that'' and inserting the following:
       ``(e) Savings Provision.--If''.
       (c) Conforming Amendment.--Section 1159(c) of title 18, 
     United States Code, is amended by striking paragraph (3) and 
     inserting the following:
       ``(3) the term `Indian tribe'--
       ``(A) has the meaning given the term in section 4 of the 
     Indian Self-Determination and Education Assistance Act (25 
     U.S.C. 450b); and
       ``(B) includes an Indian group that has been formally 
     recognized as an Indian tribe by--
       ``(i) a State legislature;
       ``(ii) a State commission; or
       ``(iii) another similar organization vested with State 
     legislative tribal recognition authority; and''.

  Mr. KYL. Mr. President, today I am pleased to join with Senator 
McCain to introduce the Indian Arts and Crafts Amendments Act of 2005. 
This legislation strengthens the investigative and enforcement 
authorities of the underlying Indian Arts and Crafts Act of 1990.
  Native arts and crafts are the only indigenous art of America. 
Unauthentic reproductions and mass produced knock offs undercut sales 
of genuine articles, discouraging young Native Americans from learning 
traditional artisans' techniques and their decisions to pursue jobs in 
other industries. The end result is that if less Native people are 
practicing their arts, those traditions risk extinction. It would be a 
tremendous loss to the entire country's cultural heritage to lose these 
traditions.
  The Indian Arts and Crafts Act of 1990, which I coauthored with now 
retired Senator Ben Nighthorse Campbell when we were both Members of 
the House of Representatives, was enacted in response to growing sales 
of arts and crafts products misrepresented as being produced by 
Indians. It is a truth-in-advertising law, with civil and criminal 
provisions, that prohibits the marketing of products as ``Indian made'' 
when such products are not made by Indians as defined by the act. It is 
intended to protect Indian artists and craftspeople, businesses, 
tribes, consumers and our cultural heritage.
  Since the passage of the 1990 Act, we have had an opportunity to 
assess its effectiveness and make changes as necessary through the 
legislative process. Last year, now retired Senator Campbell and I, on 
the recommendation of the Indian Arts and Crafts Board, agreed to 
consider amending the act to strengthen its investigative authority and 
enforcement provisions. The Board was becoming concerned that the 
Federal Bureau of Investigation, charged with investigating violations 
of the act, needed some help. Fewer complaints that had been referred 
for investigation were receiving the attention they deserved and 
meritorious cases were not making it to the Attorney General for 
prosecution. During the last Congress, we proposed amending the act to 
strengthen the investigative and enforcement authorities, but these 
amendments were not enacted prior to adjournment.
  I am happy to say, the new Indian Affairs Committee chairman, Senator 
McCain, recognized these concerns still existed, and we agreed to work 
together to address them. The Amendments we are introducing today build 
upon the work in the last Congress. When enacted, they will make the 
act even more effective. The amendments expand the investigative 
authority under the act to include all Federal law enforcement officers 
as defined in 18 U.S.C. Section 115 (c)(1). Expanding the investigative 
authority to include other Federal law enforcement beyond the Federal 
Bureau of Investigation will permit agencies with expertise in Indian 
issues and cultural resources, such as the Bureau of Indian Affairs law 
enforcement and the Department of Interior Cultural Resources, to 
thoroughly investigate complaints and work with Department of Justice 
attorneys to enforce these cases. The FBI will still have the ability 
to conduct such investigations should it choose to do so. I hope it 
will.
  These amendments also recognize the important role of the Attorney 
General in enforcement. The amendments require the transmission of all 
investigation reports from Federal investigators to the Attorney 
General. The Attorney General can work directly with the investigators, 
and prosecute cases that warrant prosecution without waiting for the 
report to be referred by the Indian Arts and Crafts Board. This is an 
efficiency measure and is not designed to take away any authority the 
Board has to refer cases to the Attorney General. The Board will 
continue to receive all investigative reports and make referrals.
  I believe these amendments to the act will strengthen the 
investigative and enforcement authority under the act and increase the 
number of complaints that are investigated and prosecuted. These 
violations are serious, and we need to provide the necessary federal 
resources to put an end to these crimes and preserve the cultural 
heritage of our Native people. I look forward to swift passage of these 
amendments.
                                 ______