The Navajo Nation reacts to ""native"" fashion trend

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Content UNIVERSITY
OF
SOUTHERN
CALIFORNIA

THE
NAVAJO
NATION
REACTS
TO
“NATIVE”
FASHION
TREND

THESIS
SUBMITTED
TO

THE
ANNENBERG
SCHOOL
OF
JOURNALISM

IN
CANDIDACY
FOR
THE
DEGRESS
OF

MASTER’S
OF
ARTS
IN
SPECIALIZED
JOURNALISM

BY
ELISE
C.
HENNIGAN

LOS
ANGELES,
CA

JANUARY
2013

Copyright
©
2013
by
Elise
Hennigan

All
rights
reserved

Thank
you
Pat,
Karen,
Brian,
Jackie,
and
Andrew
for
your
support.
Double
thank
you

to
all
of
the
individuals
who
generously
shared
their
time
and
stories
with
me
for

this
piece.

CONTENTS

ABSTRACT

v

THE
NAVAJO
NATION
REACTS
TO
“NATIVE”
FASHION
TREND

Chapter
1:
Introduction
……………………………………………………………………………
1

Chapter
2:
A
Flood
of
Counterfeit
Goods
……………………………………………………
6

Chapter
3:
Santa
Fe’s
Portal
Program
…………………………………………………...…...
9

Chapter
4:
The
True
Price
of
the
Market
is
Hard
to
Pin
Down
…………………..
13

Chapter
5:
Online
Sales
of
“Native”
Goods
…………………………………………….…
17

Chapter
6:
A
Lack
of
Enforcement
…………………………………………………………...
20

Chapter
7:
In
the
Courts
………………………………………………………………………….
23

Abstract

Fed
up
with
the
mainstream
adoption
of
the
“Navajo”
fashion
trend,
the

Navajo
Nation
decided
to
sue
one
popular
purveyor
of
Navajo-‐style
goods,
Urban

Outfitters,
in
2012.
In
the
lawsuit,
the
Navajo
Nation
claims
trademark
infringement

and
transgression
of
a
lesser-‐known
law:
the
Indian
Arts
and
Crafts
Act
of
1990,

which
states
that
no
company
shall
falsely
imply
that
their
products
are
made
by
a

Native
American
when
they
are
not.

This
Act,
which
has
rarely
ever
been
enforced
in
federal
court,
could
have

broad
implications
on
Native
Americans’
whose
culture
has
become
a
profitable

trend
and
on
thousands
of
Native
artists
who
have
long
suffered
financial
losses
to

overseas
counterfeiters
who
claim
that
their
products
are
“Native-‐made.”

1

One
chilly
afternoon
in
January
2010,
Adrienne
Keene,
then
a
first
year

doctoral
student
at
the
Harvard
Graduate
School
of
Education,
was
killing
some
time

in
between
classes
when
she
wandered
into
an
Urban
Outfitters
store
in
Harvard

Square.
What
she
found
alongside
that
season’s
flannels,
miniskirts,
and
ironic

sunglasses
startled
the
twenty-‐eight-‐year-‐old
member
of
the
Cherokee
Nation.

“It's
no
secret
that
many
hipsters
have
an
obsession
with
all
things
Native,”

Keene
wrote
later
that
evening
on
her
blog,
Native
Appropriations,
“but
I
was
a
little

surprised
at
how
many
examples
I
found.”
1

What
Keene
saw
was
a
jumbled,
kitschy
mess
of
familiar
symbols
from
her

culture.
Neon-‐colored
synthetic
dream-‐catchers,
bright,
geometric-‐print
tees,
totem

pole-‐shaped
jewelry
stands,
and
rhinestone-‐studded
moccasins
were
piled
onto
the

store’s
display
stands.

The
budding
“Native”
trend
caught
Keene’s
attention
and
she
began
to

document
it
on
her
blog,
Native
Appropriations,
a
forum
she
had
created
to
discuss

how
Native
Americans
are
represented
in
America.
Keene
started
this
blog
as
a

personal
project
after
discovering
that
many
of
her
new
classmates
had
never
met
a

“real”
or
“modern”
Native
American
and
only
had
what
they
saw
on
television
to

guide
their
perceptions.

America’s
affinity
towards
“dressing
up
like
Indians”
worried
Keene.
So
did

this
budding
“Native”
trend.
Suddenly
America’s
youth
were
sporting
moccasins,

turquoise
jewelry,
and
even
full-‐on
headdresses
in
the
name
of
fashion.

1

Adrienne
Keene,
in
discussion
with
the
author,
November
8,
2012.

2

“When
I
started
my
blog,
it
was
really
perfect
timing.
It
was
right
at
the
start

of
fashion
trends
like
the
‘hipster
headdress,’”
Keene
says.
“Now
the
trend
has

spiraled
out
of
control.”

In
the
past
two
years,
the
trend
has
grown
from
a
countercultural

fascination—as
one
might
have
described
it
when
it
was
last
popular
in
the
70s—to

a
mainstream
craze.

In
the
latter
half
of
2011,
an
offshoot
of
the
trend
evolved
from

general
mimicry
of
Native
American
patterns
to
one
that
specifically
referred
to
the

Navajo
tribe.
Banking
on
name
recognition,
the
fashion
world
began
referring
to
the

new
trend
as
“Neo-‐Navajo.”
23

The
Navajo
trend
was
hatched
in
the
Spring
2011
runway
collections
of

influential
designers
Proenza
Schouler
and
Isabel
Marant.
From
there,
it
trickled

down
to
both
high-‐end
and
mainstream
consumer
outlets
like
Forever
21,
Target,

and
Walmart.
Celebrity
fans
like
Kate
Bosworth
and
Nicole
Richie
gave
credence
to

the
trend
and
helped
its
spread.
“Now
the
trend
is
sold
at
every
level
of
the
fashion

industry,”
Keene
says.

While
some
of
the
“Navajo”
designs
are
loosely
based
on
19
th

century
Navajo

rug
patterns,
“most
of
it
is
a
cultural
mish-‐mash,”
Keene
says.
Designers
will
take

Navajo
designs,
introduce
new
design
elements
to
them
and
continue
calling
them

“Navajo,”
diluting
the
Navajo
name
along
the
way.

2

“New
Arrivals:
Neo-‐Navajo.”
Net-‐a-‐Porter.
http://fashionfix.net-‐a-‐
porter.com/newsflash/arrivals-‐neonavajo.

3

“Fall
Fashion
Trends,
What
to
Wear
This
Fall:
Neo-‐Navajo.”
Oprah.com.

http://www.oprah.com/style/Fall-‐Fashion-‐Trends-‐What-‐to-‐Wear-‐This-‐Fall/12.10.

3

Specifically
naming
an
individual
tribe
as
a
stand
in
for
a
trend
is
where
designers

like
Urban
Outfitters
went
wrong.

The
Navajo
Nation
is
the
largest
self-‐governed
Native
American
territory
in

the
United
States.
It
consists
of
more
than
300,000
people—many
of
whom
still

produce
their
own
designs
under
the
Navajo
name—and
spans
portions
of

northeastern
Arizona,
southeastern
Utah,
and
northwestern
New
Mexico.

“The
use
of
the
name
‘Navajo’
takes
the
power
away
from
the
Navajo
Nation

to
market
its
own
products
under
their
own
name,”
Keene
says.

The
Nation,
unhappy
with
Urban
Outfitters’
offering
of
more
than
20

“Navajo”
branded
products
in
their
stores
and
online,
sent
the
2.5
billion-‐dollar

retail
giant
a
cease-‐and-‐desist
letter
in
June
of
2011.
Urban
Outfitters
has
stated
that

they
did
not
receive
this
letter
until
October
of
2011
and
did
not
take
action
until

after
that
time.

The
Navajo
Nation
pointed
specifically
to
the
“Navajo
Hipster
Panty,”
which

they
called
“derogatory
and
scandalous”
4

and
a
hip-‐flask
wrapped
in
“Navajo
Print

Fabric,”
which
they
took
particular
issue
with
due
to
the
community’s
serious

problems
with
alcoholism.
The
sale
of
alcohol
is
banned
on
the
27,000
square-‐mile

reservation.

Initially,
Urban
Outfitters
rejected
any
criticism.
In
a
statement
in
October

2011,
Public
Relations
Director
Ed
Looram
wrote,
"The
Native
American-‐inspired

trend
and
specifically
the
term
'Navajo'
have
been
cycling
thru
[sic]
fashion,
fine
art

4

The
Navajo
Nation
et
al
v.
Urban
Outfitters
Inc.,
No.
CIV
2012-‐00195
LH-‐WDS
(D.C.

NM
2012),
Pacer.

4

and
design
for
the
last
few
years.
We
currently
have
no
plans
to
modify
or

discontinue
any
of
these
products."
5

As
Urban
Outfitters
stood
by
this
decision,
critical
voices
from
a
growing

online
community
grew
louder.
On
October
10,
2011,
Sasha
Houston
Brown
of
the

Santee
Sioux
Nation
posted
a
scathing
open
letter
to
Urban
Outfitters
on

Racialicious,
a
blog
that
covers
the
intersection
of
race
and
pop
culture.
The
letter

went
viral
and
was
picked
up
by
hundreds
of
websites,
including
Gawker
Network’s

Jezebel—which
triggered
hundreds
more.

After
over
14,000
people
quickly
signed
a
petition
on
Change.org,
Urban

Outfitters
quietly
changed
the
names
of
many
of
the
offending
products
though
it

continued
to
sell
them.
On
many
styles,
the
word
“Printed”
replaced
“Navajo.”
Other

labels
were
changed
to
“Aztec,”
“Southwestern,”
or
“Tribal.”

Despite
the
name
changes,
and
encouraged
by
the
growing
wave
of
online

support,
the
Navajo
Nation
pressed
forward
with
a
lawsuit
in
February
2012.

While
offending
others
is
still
not
against
the
law
in
America,
trademark

infringement
is.
“They
have
the
law
firmly
on
their
side,”
says
Joseph
F.
Murphy,
a

New
York-‐based
fashion
lawyer.
The
Navajo
Nation
has
held
a
registered
trademark

on
the
name
“Navajo”
since
1946.
6

“The
defendant
offers
identical
types
of
goods
as
those
marketed
and
sold
by

the
Navajo
Nation—except,
of
course,
that
these
products
are
not
genuine
NAVAJO

5

“Urban
Outfitters
Under
Fire
for
‘Navajo’
Collection,”
ABC
News
Radio
Online,

http://abcnewsradioonline.com/business-‐news/urban-‐outfitters-‐under-‐fire-‐for-‐
navajo-‐collection.html.

6

Joseph
F.
Murphy,
in
discussion
with
the
author,
September
1,
2012.

5

products,”
the
plaintiff’s
legal
team
explained
in
their
complaint
before
The
United

States
District
Court
for
the
District
of
new
Mexico.
7

The
lawsuit
also
invokes
a
lesser-‐known
law,
the
Indian
Arts
and
Crafts
Act

of
1990,
which
prohibits
the
marketing
of
goods
as
“Native”
or
“Indian”
if
they
have

not
been
made
by
a
member
of
a
federally
recognized
tribe.

This
act
was
first
written
in
1935
as
an
effort
to
promote
self-‐sufficiency
of

Native
American
tribes.
The
Indian
arts
and
crafts
market
was
then,
as
it
is
now,

seen
as
a
key
industry
for
the
economic
stability
of
American
Indian
communities.

Since
1935,
this
law
has
been
enforced
only
a
handful
of
times.
“It
is
one
of

the
most
poorly
enforced
laws
in
all
of
federal
Indian
law,”
says
Professor
Bruce

Duthu,
a
scholar
of
Native
American
law
and
policy
from
Dartmouth
University.
“It

sits
on
a
shelf,
literally,
and
no
one
uses
it.”
8

Were
it
enforced,
the
act
could
help
protect
the
intellectual
property
of

hundreds
of
thousands
of
Native
Americans
who
find
themselves
competing
with

American
companies
and
overseas
manufacturers
that
produce
Native-‐style

products
that
are
in
no
way
associated
with
the
tribes.

Heading
into
this
case,
the
legal
team
for
the
Navajo
Nation,
Harrison
Tsosie,

Dana
Brobroff,
Brian
L.
Lewis
and
Henry
Howe
of
the
Navajo
Nation
Department
of

Justice
and
Mark
A.
Griffin
and
Karin
B.
Swope
of
Seattle’s
Keller
Rohrback
LLP,
will

have
very
little
federal
case
history
to
guide
them.
It
will
be
up
to
them
to
make

history.

7

The
Navajo
Nation
et
al
v.
Urban
Outfitters
Inc.,
No.
CIV
2012-‐00195
LH-‐WDS
(D.C.

NM
2012),
Pacer.

8

Professor
Bruce
Duthu,
in
conversation
with
the
author,
November
7,
2012.

6

A
Flood
of
Counterfeit
Goods

Taking
refuge
from
the
Albuquerque
sun
beneath
a
wide-‐brimmed,
woven

cowboy
hat
and
sunglasses,
Shane
Hendren
says,
“The
Indian
Arts
and
Crafts
Act
is
a

toothless
law.
No
one
has
ever
been
prosecuted
for
it.”

“It’s
a
law
that
is
based
on
advertising.
All
they
have
to
do
in
their
advertising

is
say
‘Navajo-‐inspired,’
‘Navajo-‐style’—you
know
the
layman
doesn’t
understand

what
that
means.
All
they
see
is
the
word
‘Navajo’
and
that
it’s
jewelry,
one
equals

the
other.”

Hendren
knows
quite
a
bit
about
Navajo
jewelry.
He
has
been
creating
it
and

other
forms
of
art
since
he
was
a
child.
Growing
up
on
ranches
and
the
Tohatchi

reservation
in
New
Mexico
in
the
1970s,
Hendren
spent
his
youth
riding
bulls,

training
horses,
and
sketching
everything
he
saw.

When
he
grew
older,
he
pursued
a
higher
education,
learned
the
ins-‐and-‐outs

of
the
art
business,
and
mastered
advanced
metalwork
techniques—Mokune-‐gane,
a

rare
metal
lamination
process,
engraving,
and
various
forms
of
casting.
Now

Hendren
is
a
master
jeweler
with
impressive
technical
skills.

He
creates
constantly.
“I
draw
everyday.
There
is
not
one
day
that
goes
by

that
I
don’t.
I
try
to
explain
it
to
people,
but
they
have
no
concept
of
it.
It’s
a

madness,”
he
says.

Lately,
Hendren’s
wife
Rayne,
who
handles
the
commercial
aspects
of
their

family
jewelry
business,
has
been
sorting
through
her
husband’s
sketches.

7

“There
are
just
sketches
everywhere,”
she
says.
“I
thought,
‘I’ll
put
all
his

necklaces
in
one
pile,
earrings,
bracelets,
in
others,’
but
he’ll
have
ten
different
ideas

on
each
piece
of
paper.”
9

“Just
imagine,”
Hendren
says
to
his
wife,
“All
of
that
paper
that
you
are

dealing
with—all
of
that
is
in
my
mind,
all
the
time.”
10

As
a
Native
American
artist,
Hendren
is
at
the
top
of
his
game—he
is
admired

in
his
community,
has
won
awards
and
was
recently
commissioned
for
a
public
art

project
by
the
state
of
New
Mexico.

He’s
on
the
board
of
the
Indian
Arts
and
Crafts
Association
(IACA)—a
trade

group
that
educates
consumers
about
authenticity
and
advocates
for
the
rights
of

artists.
In
the
past,
he
served
as
the
association’s
president.

Hendren’s
pieces
are
coveted
by
collectors
and
fetch
healthy
prices—a
pair

of
his
earrings
start
at
$300,
according
to
Rayne.
His
success
making
art
has
allowed

him
to
support
his
family—his
wife,
son,
and
three
daughters.

These
achievements
have
also
made
him
a
target
for
international

counterfeiters
who
hope
to
profit
from
the
name
that
he
has
built
for
himself.

Years
ago,
a
group
of
computer
hackers
based
in
China
hacked
into

Hendren’s
website,
took
over
control,
and
sold
fake
Navajo
jewelry
from
his
domain

name.
The
knock-‐offs
looked
similar
to
Hendren’s
but
the
pieces,
like
the
profits

from
their
sales,
were
not
his.

“He
had
his
whole
website
ripped
off,”
says
Joe
Zeller,
the
current
president

of
the
IACA
and
friend
of
Hendren’s.
“It
wasn’t
Shane’s
stuff
at
all.”

9

Rayne
Hendren,
in
discussion
with
the
author,
July
31,
2012.

10

Shane
Hendren,
in
discussion
with
the
author,
July
31,
2012.

8

The
incident
was
jarring,
but
did
not
come
as
a
complete
surprise.
Hendren

often
sees
phony
versions
of
his
jewelry
in
markets
around
his
home
state
of
New

Mexico.
Some
pieces
feature
a
fake
version
of
his
signature.
Others
look
remarkably

similar
to
designs
that
he
innovated.

Since
designs
are
notoriously
difficult
to
patent,
they
can
not
be
protected.

“You
find
something
that
is
cool
or
innovative
or
hot
and
I
guarantee
you
that
it
is

going
to
get
knocked
off
overnight,”
Hendren
says.
“As
soon
as
you
put
it
on
your

website,
forget
it.
You
just
gave
them
the
blueprint.”

9

Santa
Fe’s
Portal
Program

Most
Saturday
mornings,
Mary
Eustace
unfurls
a
woven
blanket
on
the

perimeter
of
the
main
square
in
Santa
Fe,
sits,
arranges
delicate
pieces
of
her
silver

jewelry
in
front
of
her,
and
awaits
the
bustle
of
tourists
and
rising
desert
heat.

She
is
an
enrolled
member
of
the
Portal
Program
at
the
Governor’s
Palace
in

Santa
Fe—an
organization
that
offers
artists
from
diverse
tribal
backgrounds
a

choice
spot
on
the
main
square
to
sell
their
wares.
The
attraction
draws
more
than
a

million
tourists
annually.
Vendors
who
are
not
registered
in
this
program
must
set

up
shop
further
away
from
the
center
of
town.

Other
merchants,
also
sitting
on
blankets
displaying
their
creations
before

them,
flank
Eustace
on
both
sides.
Bright
orbs
of
turquoise
set
into
ring
fittings,

delicately
beaded
wrap
bracelets,
and
sterling
silver
pendants
etched
with
tribal

symbols
are
settled
in
rows
on
either
side
of
her.

The
merchants
registered
with
this
program
are
required
to
make
or
oversee

the
production
of
the
pieces
that
they
sell
and
they
must
be
authentic
Native-‐made.

There
are
financial
penalties
if
they
are
not
forthright
about
their
origins.

The
jewelry
on
sale
here
is
not
cheap—one
turquoise-‐studded
bracelet

caught
the
eye
of
Jacqueline
Davis,
who
was
visiting
Santa
Fe
from
San
Francisco
last

summer.
According
to
Davis,
the
vendor
told
her
it
cost
$140
and
would
not

negotiate
otherwise.

“It’s
beautiful,”
Davis
said,
placing
the
piece
back
down
in
front
of
the
seller,

10

“I
just
wasn’t
expecting
it
to
be
so
pricey.”
11

Authentic
Native
American
jewelry
is
generally
handmade
and
tends
to
be

more
expensive
than
patrons
expect.
“When
people
are
just
looking
for
the
trendy,

quick,
fashion
fix
they
are
not
likely
to
drop
hundreds
of
dollars
on
a
piece,”

Adrienne
Keene
says.

Consumers
are
used
to
seeing
Native-‐style
jewelry
that
has
been
imported

from
overseas
and
is
much
cheaper.
Because
purveyors
of
fake
jewelry
use
low

quality
materials,
they
are
able
to
price
their
pieces
much
lower
than
authentic

Native
American
jewelry.

“If
you
have
a
pair
of
sterling
silver
and
turquoise
earrings
that
look
like
they

were
made
by
a
Navajo
and
they
are
being
sold
for
ten
bucks,
you
probably
aren’t

looking
at
the
real
thing,”
Shane
Hendren
says.

With
the
current
price
of
sterling
silver
and
stabilized
turquoise
and
the

added
cost
of
labor,
Hendren
says
that
a
pair
of
authentic
turquoise
earrings
would

have
to
cost
at
least
$100.

Eustace
says
that
artists
who
sell
at
the
governor’s
palace
in
Santa
Fe,
despite

their
prime
location,
are
at
a
disadvantage
to
those
who
sell
fake,
imported
goods

elsewhere
in
Santa
Fe.
Counterfeit
retailers
can
easily
price
their
inauthentic
wares

to
undercut
the
authentic
ones.
Eustace
says
that
she
sees
knockoff
pieces
“all
the

time.”
12

The
knockoffs
also
cause
consumers
to
distrust
the
market.
Even
if
sellers

can
offer
a
certificate
of
authenticity,
it
is
often
difficult
to
gauge
which
pieces
are

11

Jacqueline
Davis,
in
discussion
with
the
author,
July
30,
2012.

12

Mary
Eustace,
in
discussion
with
the
author,
July
30,
2012.

11

bona
fide.
Some
galleries
and
retailers
that
sell
“legitimate”
Native
work
employ

non-‐Natives
to
design
and
complete
pieces.

“I
have
friends
who
have
big
manufacturing
companies,”
Eustace
says.
“They

would
prefer
to
hire
other
Natives,
but
there
are
problems—sad
to
say,
with

alcoholism
or
what
not.
So
they
will
go
and
hire
other
people.
But
they
would
still

say
it
was
Native-‐made.”

“I’m
not
an
art
cop,”
Hendren
says,
“but
what
I
will
say,
no
matter
where
you

look
in
Santa
Fe,
the
majority
of
what
you
are
looking
at
is
illegitimate.”

For
decades,
Native
American
artists
have
been
losing
a
battle
against

international
counterfeiters
and
domestic
wholesalers
who
have
flooded
the
market

with
fake
goods
and
cheap
replicas
of
their
work.

“You
start
to
ask
where
these
things
come
from,”
Zeller,
the
IACA
president,

says,
reflecting
on
the
problem.
“You
know
darn
well
just
by
looking
at
it,
because

the
quality
is
not
there.
You
know
that
it
is
not
the
real
thing.”
13

Although
there
is
a
strong
demand
for
American
Indian
jewelry
and
textiles,

especially
with
the
mainstream
adoption
of
the
“Native”
trend,
Native
American

communities
have
scarcely
profited.

The
Navajo
Nation’s
official
unemployment
rate
is
nearly
50
percent
and
has

hovered
above
the
mid
to
high
40s
for
the
last
two
decades;

14

their
median
four-‐

13

Joseph
Zeller,
in
discussion
with
the
author,
July
13,
2012.

14

United
States
Department
of
the
Interior:
Bureau
of
Indian
Affairs.
Indian

Population
and
Labor
Force
Report,
“Potential
Labor
Force”
2005,
’03,
’01,
’99,
’97,
’95,

’93,
’91,
’89,
’87,
’85,
and
’82;

(The
2010
report
was
not
released
due
to

“methodology
inconsistencies.”)

12

person-‐family
income
tops
out
at
around
$22,000,
which
is
half
of
the
median

income
for
the
rest
of
the
country,
and
43
percent
of
the
Nation’s
residents
live

below
the
poverty
line.
15

“Go
to
any
gallery
in
Santa
Fe
or
Albuquerque
or
any
of
these
places
that

specialize
in
Indian
art
and
find
out
what
the
gallery
owner
drives,
what
kind
of

house
he
lives
in,
what
his
address
is,”
says
Hendren.

“And
then
go
look
at
the
artist
whose
work
is
in
the
case
and
compare
their

lifestyles.
You
can’t
get
any
more
black
and
white
than
that.”

15

“Navajo
Nation
Demographics.”
Dine
Development
Corporation.

http://www.navajobusinessdevelopment.com/information/navajo-‐nation-‐
demographics.html

13

The
True
Price
of
the
Market
is
Hard
to
Pin
Down

The
exact
dollar
amount
that
manufacturers
make
off
of
imitating
designs

and
forging
works
of
popular
artists
has
been
difficult
for
experts
to
assess.

In
1990,
when
Congress
passed
the
amended
Indian
Arts
and
Crafts
Act—the

law
that
is
supposed
to
protect
Native
American
artists
from
counterfeiters,

lawmakers
estimated
that
the
entire
industry
was
worth
about
$1
billion.
During
a

congressional
hearing,
lawmakers
stated
that
as
much
as
non-‐Indian
goods
satisfy

$500
million.
16

Much
of
this
profit—which
could
be
going
towards
the
financial

independence
of
tribes
in
America—is
going
overseas.

Neither
the
Indian
Arts
and
Crafts
Association
(Hendren
and
Zeller’s

organization
that
educates
consumers
on
counterfeit
goods)
nor
the
Indian
Arts
and

Crafts
Board
(the
federal
agency
that
was
created
to
protect
the
industry)
has
been

able
to
track
the
problem
in
a
quantitative
way.

“We
don’t
track
it
on
a
systematic
basis
as
much
as
we’d
like
to
because
of

the
resources
that
would
be
required
to
really
do
it
that
way,”
Zeller
says.

The
most
recent
and
reliable
study
conducted
on
the
Indian
arts
and
crafts

market,
published
in
2011
by
the
Government
Accountability
Office
(GAO),
reports

that
the
actual
size
of
the
Indian
arts
and
crafts
market
and
the
counterfeit
market
is

16

United
States
Congress.
Senate.
“To
Improve
the
Cause
of
Action
for

Misrepresentation
of
Indian
Arts
and
Crafts.”
(S.
Rpt
106-‐452).
Washington:

Government
Printing
Office.
September
22,
2000.

http://www.gpo.gov/fdsys/pkg/CRPT-‐106srpt452/html/CRPT-‐106srpt452.htm.

14

unknown.
17

“Existing
estimates
are
outdated,
limited
in
scope,
or
anecdotal
and
no

national
sources
contain
the
data
necessary
to
make
reliable
estimates,”
the
report

says.

Although
precise
numbers
are
hard
to
come
by,
the
report
makes
it
clear
that

the
counterfeit
trade
has
reduced
demand
and
driven
down
the
price
of
authentic

Native
American
products
and
tainted
consumer
confidence
in
the
integrity
of
the

market.

There
is
also
a
cultural
dimension
to
this
problem.
The
mere
existence
of

cheap,
counterfeit
goods
passed
off
as
“authentic”
is
offensive
to
many
Native

American
communities.

“Many
of
the
symbols
we
use
in
our
art
are
integral
to
our
heritage,”
says

Don
Standing
Bear
Forest,
a
Native
American
artist
who
lives
in
Alaska
and
serves
as

the
chairman
of
IACA’s
Legal
Affairs
Committee.
“We
use
them
to
evoke
specific

stories
of
our
past.
When
others
take
these
symbols
and
confuse
their
meanings,
I

find
it
funny
for
the
most
part.
But
it
can
go
deeper
than
that.”
18

Many
counterfeit
products
misappropriate
sacred
symbols
and
practices.

Geometric
shapes,
representation
of
animals,
zig-‐zagging
designs—they
all
possess

a
specific
meaning
to
certain
tribes.
When
a
Native-‐style
bracelet
throws
these

17

United
States
Government
Accountability
Office,
“Size
of
Market
and
Extent
of

Misrepresentation
Are
Unknown,”
April
28,
2011.

18

Don
Standing
Bear
Forest,
in
discussion
with
the
author.
August
24,
2012.

15

symbols
together
haphazardly,
not
only
do
the
symbols
lose
their
meaning
but
the

original
intent
is
confused
as
well.

“The
stacked
triangles
on
blouses
at
H&M
could
be
interpreted
as
clouds,

which
bring
rain
to
the
crops
of
Navajoland
and,
therefore,
food
to
the
tribe's

tables,”
Jamiee
Rose
a
contributing
writer
for
the
Arizona
Republic,
wrote
in
an
op-‐
ed
on
the
subject.
One
could
venture
to
guess
that
a
designer
for
the
retail
store

H&M
was
not
considering
weather
patterns
when
they
mass-‐produced
that
article

of
clothing.

The
inferior
quality
of
the
fake
products
is
insulting
to
artists
and
other

Native
Americans,
who
feel
that
the
products
mock
Indian
culture
and
beliefs.

On
a
recent
trip
to
Colorado,
Eustace
saw
Native
American
sellers
set
up

behind
several
tables
with
banners
that
read
“Sterling
Silver”
and
“Native
American-‐
made.”

“I
walked
up
to
the
table
and
all
of
it
was
nickel
silver!”
she
says.
“People

were
going
crazy
over
it.
Buying
everything.
But
it
was
all
crap.”
When
Eustace

confronted
the
vendors,
they
quickly
shooed
her
away.
“They
know
what
they
are

doing
for
an
easy
buck,”
she
says.

Eustace
and
several
other
artists
interviewed
for
this
story
admitted
that

some
Native
Americans
are
also
guilty
of
selling
fake
Native
American
jewelry
and

art—sometimes
under
the
direction
of
a
store
or
gallery
owner
and
other
times
in

roadside
stands.

16

“[The
fakes]
are
not
authentic
and
true
portrayals
of
their
culture.
This

contributes
to
ongoing
misperceptions
of
the
tribal
communities,”
Adrienne
Keene

says.

According
to
the
GAO
report,
“Indian
artisans
have
voiced
concerns
that
the

traditional
knowledge
of
how
to
create
these
goods—often
passed
down
from

generation
to
generation
within
the
tribes—will
not
be
carried
forward
by
younger

generations
if
they
cannot
make
a
living
producing
these
goods.”

17

Online
Sales
of
“Native”
Goods

Joni
Stinson,
an
enrolled
member
of
the
Muscogee
Creek
tribe,
found
a
new

community,
customer
base,
and
second
career
on
Etsy.com—a
popular
website
that

allows
artisans
all
over
the
world
to
connect
with
each
other
and
sell
handmade

goods.

By
the
time
Stinson
reached
retirement
age,
she
had
long
given
up
her
family

tradition
of
beading.
She
had
focused
instead
on
raising
her
two
sons
and
pursuing
a

career
as
a
dietician.

Eight
years
ago,
after
attending
a
powwow
with
her
grandchildren,
she
saw

an
opportunity
to
sell
authentic
beaded
work
at
affordable
prices.
“I
thought
there

ought
to
be
a
booth
where
people
could
buy
something
to
enjoy
and
have
a
souvenir

of
their
day
that
doesn’t
cost
them
an
arm
and
leg
but
the
quality
is
there,”
she

remembers.

“I
came
home
and
dragged
out
my
beads,
and
I
started
beading
with
the
goal

in
mind
to
keep
my
price
point
reasonable.
The
rest
is
history,”
Stinson
says.
19

Stinson
found
some
customers
at
local
powwows
in
her
home
state
of

Nebraska
and
bigger
events
in
Santa
Fe.
But
it
wasn’t
until
a
friend
told
her
about

Etsy
that
she
was
able
to
get
her
business
off
the
ground.
Using
Etsy,
Stinson
was

able
to
nearly
double
her
business
within
her
first
year
on
the
site.

On
Etsy,
Stinson
found
a
community
of
like-‐minded
individuals
from
around

the
world
with
whom
to
swap
stories,
exchange
pro
tips,
and
sell
her
goods.

19

Joni
Stinson,
in
discussion
with
the
author,
July
19,
2012

18

She
is
now
a
pillar
in
the
Native
American
community
on
Etsy.
She
is
the

captain
of
a
forum
called
“Walking
the
Red
Road”
where
she
posts
about
other

members’
work,
wishes
others
well,
and
shares
lessons
from
Native
ancestors.

“I’ve
met
some
nice
people
on
Etsy.
It’s
been
fun,”
she
says.

In
the
past
few
years,
Stinson
has
watched
the
Native
trend
catch
on
and

spread
across
the
Etsy
community.
In
November
2009,
a
search
for
“Native

American”
products
yielded
5,000
results.
Today,
Stinson
says
that
a
similar
search

revealed
50,000
items
tagged
as
“Native
American”
on
the
site.

If
products
are
labeled
as
“Native-‐inspired”
rather
than
“Native-‐made,”
the

crafters
are
within
the
limits
of
the
law.
If
they
do
not
make
it
clear
that
they
are
not

Native
American,
they
are
at
risk
of
violating
the
Indian
Arts
and
Crafts
Act.

“There
are
many
users
who
try
to
deceive
and
pretend
that
they
are
Native

and
their
work
is
authentic
when
it
is
isn’t.
But
there
is
no
way
that
anyone
can
stop

someone
from
beading
something.”

Etsy’s
Terms
of
Use
require
that
its
users
make
the
items
that
they
are
selling

themselves.
Stinson
suspects
that
many
of
the
sellers
are
actually
overseas

companies
who
try
to
deceive
Etsy
users
and
profit
from
the
current
Native
trend.

Follow
one
user’s
Etsy
page
to
his
website
and
the
text
is
clear:
their
About

Me
page
states
“Made
in
India”
but
their
homepage
claims
that
they
sell
“authentic,

handmade
goods
from
Native
Americans.”
20

On
another’s
profile,
you
can
buy

20

Eagle
Spirit.
Native
American
Store.
http://www.eaglespiritstore.com

19

“handmade,
authentic
Native
bracelets”
by
the
hundreds.
21

“You
know
that
you
can’t
make
two-‐dozen
pieces
of
anything
that
are
exactly

the
same,”
Zeller
of
the
IACA
says.

According
to
Stinson,
she
and
other
registered
Native
Americans
and
the

purveyors
of
counterfeit
Native
goods
all
sell
similar
items.
“We
are
all
in

competition
for
the
limited
dollars
available
in
that
category,”
she
says.

Last
year,
Stinson
filed
several
complaints
with
the
Indian
Arts
and
Crafts

Board.
“I
have
sent
numerous
examples
of
people
who
are
misrepresenting
their

work
to
the
IACB
board
and
so
far,
as
far
as
I
know,
have
had
no
intervention
or

caution
or
anything
from
the
board,”
she
says.

The
language
of
her
complaints
has
become
increasingly
desperate.
“If
you

do
not
help
us,”
she
wrote
to
the
board
in
April
2012,
“We
are
without
a
voice.”
22

Stinson
wonders
why
the
IACB
has
not
responded
to
any
of
her
notices
when

she
has
done
the
investigative
work
for
them.
“Somebody
needs
to
put
a
stick
under

that.
You
know,
when
you
have
people
like
me
who
do
the
leg
work
and
find
the

offenders
for
them,
it
is
inexcusable
for
them
not
to
act,”
Stinson
says.

Stinson,
however,
was
not
aware
of
just
how
bogged
down
the
Indian
Arts

and
Crafts
Board
is
with
complaints
just
like
hers.

21

“Custom
Native
American
Beaded
Bracelet
by
User
HairTrigger”
Etsy.

http://www.etsy.com/listing/96793451/custom-‐native-‐american-‐beaded-‐
bracelet?ref=sr_list_44&ga_search_query=native+american&ga_view_type=list&ga_s
hip_to=US&ga_search_type=handmade&ga_facet=handmadenative+american

22

Joni
Stinson,
e-‐mail
message
to
the
Indian
Arts
and
Crafts
Board,
April
17,
2012.

(The
email
was
forwarded
to
the
author,
September
4,
2012.

20

A
Lack
of
Enforcement

For
fifty
years
following
the
Indian
Arts
and
Crafts
Act’s
creation
in
1935,
it

was
not
once
initiated
in
a
federal
case.
The
1990
amendment
added
substantial

criminal
and
civil
punishments
to
the
law,
but
still,
it
was
hardly
ever
used.

Only
five
federal
cases
have
been
filed
under
the
act
since
1990—the
first
in

1990
and
the
last
in
2005.
In
2011,
one
case
was
brought
to
federal
court—only
to

be
dismissed.
23

When
the
first
case
reached
a
federal
appeals
court
in
2005,
the
presiding

judge,
Richard
Posner,
said,
“Although
the
Indian
Arts
and
Crafts
Act
dates
back
to

1935
this
is,
amazingly,
the
first
reported
appellate
case
under
it.
Until
1990
the

only
sanction
for
violating
the
false
advertising
provision
was
criminal
and
there

were
no
prosecutions.
Zero.”
Posner,
conservative
and
careful
with
his
words,
is

highly
regarded
for
his
integrity.

According
to
the
Government
Accountability
Office
report,
from
2006
to

2010,
the
Indian
Arts
and
Crafts
Board
received
649
complaints
of
alleged

violations.
The
Board
determined
that
about
150
of
these
complaints
were

legitimate.
They
referred
117
to
external
law
enforcement
officers
for
further

investigation.
None
of
these
cases
were
pursued.

To
find
out
why
the
Act
has
been
so
ineffective,
the
GAO
interviewed
customs

officials,
federal
agents,
and
members
of
the
Board
to
identify
the
cause
of
the

23

Native
American
Arts,
Inc.
v.
Contract
Specialties,
Inc.,
754
F.
Supp.2d
386,
393

(D.R.I.
2010).
Pacer.

21

problem.
A
mix
of
apathetic,
frustrated,
and
desperate
voices
revealed
a
number
of

causes.

While
the
board
had
a
budget
of
$1.2
million
for
2012,
it
does
not
have
a

single
investigator
on
staff
to
follow
up
on
complaints.
Instead,
it
relies
on
other
law

enforcement
agencies.
From
1990
until
2010,
the
board
mostly
had
to
rely
on
the

FBI
to
investigate
cases.

According
to
the
board’s
Director,
the
FBI
generally
declined
referrals

because
of
other
priorities—terrorism,
espionage,
public
corruption,
and
cyber-‐
warfare
all
fall
under
their
jurisdiction.
The
FBI
has
stated
that
its
primary
focus
is

on
violent
crimes;
24

counterfeit
jewelry
rings
don’t
tend
to
fall
into
this
category.

In
2010,
the
act
was
amended
again,
this
time
to
encourage
more

enforcement.
The
amendment
gave
“all
federal
agencies”
the
power
to
investigate

violations.
25

To
aid
outside
agencies,
the
board
provided
training
through

numerous
conferences
and
workshops.
But
still,
the
report
says,
the
enforcement
of

the
act
has
been
pushed
aside.

Ashley
Fry,
a
program
specialist
for
the
board,
predicts
that
things
are
getting

better.
“Since
the
release
of
the
GAO
report,”
she
said,
“there
has
been
an
increase
in

awareness
of
the
Act
and
cooperation
by
other
federal
agencies.”
26

Several
states
have
their
own
laws
that
are
similar
to
the
federal
Indian
Arts

24

United
States
Government
Accountability
Office,
“Size
of
Market
and
Extent
of

Misrepresentation
Are
Unknown,”
April
28,
2011.

25

Department
of
the
Interior.
Indian
Arts
and
Craft
Amendment
Act
of
2010,
Public

Law
111-‐211.
July
29,
2010.

26

Ashley
Fry,
e-‐mail
message
to
author,
September
7,
2012.

22

and
Crafts
Act.
While
some
of
these
states
have
been
helpful
in
taking
on

investigative
responsibilities—particularly
New
Mexico,
and
recently
Alaska—once

in
court,
a
case
of
this
type
is
difficult
to
try.

“U.S.

Attorneys’
Offices
are
overwhelmed
with
cases,
and
those
involving

violations
of
the
act
tend
to
receive
low
priority
for
federal
prosecution,”
the
authors

of
the
GAO
report
wrote.

There
is
very
limited
history
for
U.S.
Attorney’s
Offices
to
look
to
for
guidance

on
how
to
put
together
a
winning
case.
“Without
much
case
law,
these
cases
are

hard
to
prove,”
Duthu
says.
“When
these
laws
are
taken
for
a
test
drive
you
need

courts
to
do
the
nitty-‐gritty
work
of
making
decisions
on
all
of
the
variables
that

could
arise.”

Many
Native
Americans
who
are
affected
by
misrepresentation
do
not
have

the
funds
to
push
for
enforcement
of
this
law.
“I
haven’t
met
an
artist
yet
that
has

deep
enough
pockets
to
go
fight
an
international
copyright
battle
with
an
importer,”

Hendren
says.
27

The
GAO
report
concluded
that
it
would
require
a
“large
scale”
case
that

“involves
either
a
large
dollar
amount
or
a
network
of
shops
implicated
in

misrepresentation”
for
a
case
to
be
worth
enforcing.
It
is
possible
that
the
pending

case
against
Urban
Outfitters
could
fit
the
bill.

27

Shane
Hendren,
in
discussion
with
the
author,
July
31,
2012.

23

In
the
Courts

“If
the
Navajo
Nation
wants
to
send
a
message
to
would-‐be
trademark

infringers,
this
case
could
do
it,”
Joseph
Murphy,
the
New
York
City
fashion
lawyer,

explains.

Under
the
Lanham
Act,
which
currently
defines
federal
protection
and

registration
for
trademarks,
owners
have
to
file
suit
in
either
state
or
federal
civil

court
to
restrict
possible
infringement.
Failure
to
"police"
a
mark
can
result
in
the

loss
of
protection.

“If
trademark
owners
allow
unauthorized
parties
to
use
their
trademarks

willy-‐nilly,
they
risk
losing
[them],”
Murphy
explains.

So
went
the
trademark
for
the
escalator,
trampoline,
and
corn
flakes—once

the
profitable
pride
and
joy
of
individual
owners,
now
generic
names
that
are
up
for

grabs
for
anyone
to
use.

In
the
pending
“Navajo”
case,
Urban
Outfitters
has
tried
to
argue
that
the

Navajo
Nation
has
already
allowed
this
to
happen.

“The
term
‘navajo’
is
today
recognized
as
a
descriptor
for
‘Indian-‐styled’

prints
and
designs
that
may
include,
among
other
things,
‘geometric
prints,’”
Urban

Outfitters’
legal
team
wrote.

The
Navajo
Nation,
of
course,
claims
the
opposite.
Navajo
is
a
trademark,
it

claims,
and
the
Nation
has
poured
significant
resources
into
using
it
“to
distinguish

its
authentic
and
genuine
products.”
The
Navajo
Nation
has
a
lot
to
lose—culturally

and
economically—if
Urban
Outfitters
is
successful
in
this
claim.

24

“If
the
name
of
a
sovereign
Nation
has
been
reduced
to
a
generic
descriptor

of
geometric
designs,
that
is
a
huge
problem,”
Adrienne
Keene
says.
“That
goes

towards
the
argument
of
why
their
name
should
not
be
used
in
the
first
place.”

If
successful,
it
is
not
clear
whether
or
not
the
repercussions
of
the
case
will

extend
to
everyday
Navajo
artists.
“It
would
depend
how
the
decision
was
worded,”

Professor
Duthu
says.

But
it
is
clear
that
the
publicity
this
court
case
has
already
received
could
be

the
Navajo
Nation’s
biggest
win.

The
issue
of
Native
misrepresentation
has
been
acknowledged
in
a

mainstream
way
now,
in
no
small
part
because
of
Keene.
When
she
started
her
blog

in
2010,
there
were
only
one
or
two
other
blogs
providing
commentary
on
how

Native
Americans
are
represented.
Now,
there
are
hundreds.
When
companies
like

Urban
Outfitters
step
over
the
line,
there
is
an
online
presence
that
pushes
back.

“I
think
companies
have
to
be
more
reactive
than
they
were
in
the
past,

because
it
was
easier
to
ignore
a
handful
of
people
versus
a
ton
of
publicity
and

press
coming
out.
The
outpouring
of
displeasure
is
now
immediate,”
Keene
says,

pointing
to
the
thousands
of
Facebook
comments
that
companies
are
now

susceptible
to
when
they
cross
a
perceived
line.

When
Victoria
Secret
sent
a
model
down
the
runway
in
November
dressed

head
to
toe
in
faux
Native
American
apparel
and
a
warbonnet,
the
public
outcry
was

almost
instantaneous.
As
a
result,
the
company
issued
a
public
apology.

25

“There
are
so
many
burning
issues,
literally
of
life
and
death,
in
Indian

country
that
it
has
been
difficult
to
call
attention
to
this
issue,”
Duthu
says.
“Artists

could
benefit
from
the
exposure.”

The
case
could
also
show
other
tribes
that
they
do
have
the
ability
to

prosecute
wrongdoers
in
court.

“If
it
comes
out
in
favor
of
the
Navajo
Nation,
this
will
be
a
huge
precedent
for

other
communities
to
follow
suit,”
Keene
says.
“It
gives
us
a
new
arena
to
fight
back.”

Bibliography

“Custom
Native
American
Beaded
Bracelet.”
Etsy.

http://www.etsy.com/listing/96793451/custom-‐native-‐american-‐beaded-‐
bracelet?ref=sr_list_44&ga_search_query=native+american&ga_view_type=li
st&ga_ship_to=US&ga_search_type=handmade&ga_facet=handmadenative+a
merican

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of
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Interior.
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Arts
and
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2010,
Public

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July
29,
2010.

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Fall/12.10.

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Asset Metadata

Creator Hennigan, Elise C. (author)

Core Title The Navajo Nation reacts to ""native"" fashion trend

Contributor Electronically uploaded by the author (provenance)

School Annenberg School for Communication

Degree Master of Arts

Degree Program Specialized Journalism

Publication Date 05/09/2013

Defense Date 05/08/2013

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag Anthropology,Fashion,Indian Arts and Crafts Act,Indian Arts and Crafts Association,indigenous,intellectual property,IP,legal,Navajo,oai:digitallibrary.usc.edu:usctheses,OAI-PMH Harvest,Urban Outfitters

Format application/pdf (imt)

Language English

Advisor Parks, Michael (committee chair), Aronson, Jonathan (committee member), Cray, Ed (committee member)

Creator Email ehenniga@usc.edu,elisehennigan@gmail.com

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c3-253477

Unique identifier UC11293799

Identifier etd-HenniganEl-1674.pdf (filename),usctheses-c3-253477 (legacy record id)

Legacy Identifier etd-HenniganEl-1674.pdf

Dmrecord 253477

Document Type Thesis

Format application/pdf (imt)

Rights Hennigan, Elise C.

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the a...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus MC 2810, 3434 South Grand Avenue, 2nd Floor, Los Angeles, California 90089-2810, USA

Abstract (if available)

Abstract Fed up with the mainstream adoption of the “Navajo” fashion trend, the Navajo Nation decided to sue one popular purveyor of Navajo-style goods, Urban Outfitters, in 2012. In the lawsuit, the Navajo Nation claims trademark infringement and transgression of a lesser-known law: the Indian Arts and Crafts Act of 1990, which states that no company shall falsely imply that their products are made by a Native American when they are not. ❧ This Act, which has rarely ever been enforced in federal court, could have broad implications on Native Americans’ whose culture has become a profitable trend and on thousands of Native artists who have long suffered financial losses to overseas counterfeiters who claim that their products are “Native-made.”