By Jonathan Tilove
Newhouse News Service
May 16, 1993
DENVER, Colo. – With his blond hair and blue eyes, Colorado sculptor Denny Haskew looks more cowboy than Indian. He is, after all, no more than one-eighth Native American. But he is an official member of the Potawatomi tribe. And the year before last he was named Indian Artist of the Year.
Oklahoma painter Jeanne Walker Rorex, far browner than Haskew, figures she’s about one quarter Cherokee. Her late uncle, Willard Stone was a major force in Indian sculpture. But Rorex is ineligible to compete for Indian Artist of the Year because she is not enrolled in the Cherokee tribe. In fact, if she persists in calling herself Indian, she could wind up in jail.
For years it has been a federal crime, punishable by up to a $1 million fine and five years in jail, to sell arts and crafts as Indian-made if the person who made it is not quite literally an Indian.
Although not a single regulation has yet been written to implement the law and the FBI has yet to make a single arrest, the law has plunged the Indian art world into a panic. Shows have been canceled, friendships destroyed, careers and reputations damaged. More than that it has escalated the long-standing hostilities in Indian country over just who is an Indian. And it has placed the federal government in the unusual role of combatant on the side of those Indian activists and tribal leaders who want to wash clean their culture of what they view as a plethora of fakes, phonies and wannabes profiting from the current vogue in all things Indian.
According to the Indian Arts and Crafts Act of 1990, the question of who is an Indian is not a matter of biology or genetics, of race or ethnicity. It is simply a matter of law. An Indian is an enrolled member of a state or federally recognized tribe. Period. No matter how pure his or her Indian blood, an artist who is not enrolled in or otherwise certified by a tribe is not an Indian.
To its victims and critics it is all a nasty little excursion into what some of them have called an ethnic cleansing that has thrown some bona fide Indian artists into a psycho-ethnic limbo where they can no longer say who they are. It is they say both un-American and un-Indian.
“This is America. There is freedom of speech,” says Rorex. She paints gentle, somber pictures of Indian women and children in a traditional Oklahoma flat style. And yet here is the government telling her she can’t call her art Indian.
“Well I’m sorry,” says Rorex. “It is Indian.”
Haskew, who lives and works in an old church in the quiet town of Loveland north of Denver, finds the whole debate disturbing. More Irish than Indian, Haskew was reluctant to make much of his Indianness when he started sculpting eight years ago. However, he found that the Potawatomi in him sometimes showed up in his art and he quickly learned that his heritage opened shows to a starting artist Haskew says he has always felt accepted in the Indian art world But he worries about those artists the law locks out.
“Some really good Native American people are getting says Haskew Indians are the only group of people in the United States who have to prove they are who they say they To the laws many defenders concern is misplaced They contend that artists like Rorex, who cannot prove tribal descent, are pretenders who have benefited from their identification at the expense of authentic Indians.
Phony Indians are a big issue in Indian Country Phony artists. Phony writers. Phony New Age medicine men and spiritualists with hippie, pseudo-Indian names. Phony Indians taking college scholarships and jobs away from real Indians. Worst of all, many of these papier-mâché Indians have become totems of Indian culture.
“Non-Indians have stolen everything we had – our land our resources and now that the concept Indian has become a marketable commodity, they want to steal that from us,” says David Bradley a Santa Fe painter.
In the absence of official enforcement of the Arts and Crafts Act, Bradley has emerged as the Indian art vigilante, outing those he believes to be poseurs. Bradley, a Chippewa, says the Indian identity has never had more allure in the age of multiculturalism. It is much more profitable to claim you’re a minority, a person of color and especially an American Indian, says Bradley.
Indian activist Suzan Shown Harjo, one of the prime movers behind the Indian Arts and Crafts Act, says Americans grow up thinking of Indians as history, not current reality, as a part of their common heritage.
“It’s not a big leap from that to cultural appropriation,” says Harjo a Cheyenne and former head of the National Congress of American Indians. “We’re the only group who seems to have people who pretend to be us,” says Richard Glazer Danay, a painter and member of the federal Indian Arts and Craft Board, which must interpret the 1990 law.
In the 1980s the number of Americans identifying themselves as Indians jumped 38 percent to nearly 2 million, a huge increase that had more to with fashion than fertility. Another 5 million Americans claim some Indian ancestry. By contrast, only about 1.2 million Americans are members of the more than 300 federally recognized tribes. Those 1.2 million are unique – citizens not only of the United States but also of the independent sovereign Indian nations those tribes represent. Danay who is half Caughnawaga Mohawk and half Jewish (“I’m a Shmohawk) acknowledges that a natural “first response” to the arts and crafts law is, “It’s unconstitutional, its’ unfair, it’s discriminatory.”
Because his tribe is of Canadian origin, Danay, who teaches Indian history at the University of California at Riverside, cannot, under the law, bill himself as an Indian.
Yet Danay says he ultimately concluded, “if anything, the law’s not strong enough,” that it ought to apply to writers and filmmakers and lecturers, “to anyone who calls themselves Indian without any form of proof or documentation.”
Painter Kay Walkingstick, who teaches at Cornell University, disagrees. To Walkingstick, an enrolled Cherokee, documentation makes perfect sense for hiring, scholarships and tribal benefits. But not art.
“Art should be free, it should be open, it should have to do with mankind’s deepest soul,” she says. “It isn’t about wrangling about who’s an Indian and who’ s not.”
“Its a very odd law, very strange,” says Walkingstick. “It’s polarized a lot of people.”
That is not what its authors anticipated.
“It was never intended to be some kind of witch hunt,” says Sen. Ben Nighthorse Campbell, D-Colo., a cosponsor when he was in the House.
It was supposed to be a truth-in-advertising bill to protect people from unknowingly buying cheap imitation Indian products. It is estimated that imports siphon 10 to 20 percent from the $400 million to $800 million Indian handicrafts industry, an important source of income for some very poor Americans.
Campbell, a Northern Cheyenne and accomplished Indian jeweler, says the act was needed to set a uniform national standard amid a proliferation of state Indian art laws. It did so by toughening an unenforced 1935 federal prohibition on counterfeit Indian products.
Campbell says the new law also offered non-enrolled Indian artists a chance to instead seek certification as Indian artisans from the tribe of their ancestry Yet two and a half years since the law was enacted, the Indian Arts and Crafts Board, a tiny independent agency within the Interior Department, has yet to begin writing regulations. In the meantime, ad hoc enforcement has been accomplished through innuendo and fear.
“We’ve got people jumping off of bridges and cutting their wrists for no reason,” says Campbell.
Take the case of Jimmie Durham. In the past 30 years Durham has established himself as a respected Wolf Clan Cherokee performer, poet, writer, visual artist and political activist. For many years he was a leader in the American Indian Movement.
But Durham was never an enrolled Cherokee and his authenticity has been challenged. “Durham’s nothing but a jack white man with some kind of victim complex,” says David Bradley. “The only way he can fulfill it is by saying he’s the most downtrodden, disenfranchised person you can find.”
And yet, says Walkingstick, when she met Jimmie Durham she knew, “There goes a Cherokee.”
Durham argues that the whole concept of Indian art confines Indians on a commercial and cultural reservation. He has refused to seek a Cherokee.
His critics say it’s all a dodge.
Nonetheless with his identity in doubt and in fear of fines, nervous galleries in Santa Fe and San Francisco canceled Durham shows after the law passed. Since then, in the February issue of Art in America, Geoffrey Stamm, assistant general manager of the Indian Arts and Crafts Board, warned that when enforcement begins, “if Jimmie Durham is selling art work as a Cherokee and he does not have certification from the tribe, he will be arrested.”
Durham apparently took the threat seriously. He has since written Art in America citing the law and declaring, “I am not an American Indian.”
Rorex finds herself in the cultural twilight because the Cherokees require that members trace their ancestry to someone on the government’s Dawes Rolls. She cannot.
Other tribes require a minimum blood quantum or birth on the reservation. Some are matrilineal, others patrilineal.
As soon as the law passed the Five Civilized Tribes Museum in Muskogee closed its doors because two thirds of its master artists were undocumented. It reopened a month later with a new category – non-government-enrolled descendants of a tribe to describe their status.
Other venues have avoided problems by promoting themselves differently. The Colorado Indian Market in Denver became the Colorado Indian Market and Western Roundup.
“I have never and will never, regardless of the law, ever ask to see the blood quantum papers of anyone,” says Jan Esty who puts on the market, one of the largest in the nation.
Most recently Esty raised a stink when the city of Denver turned over a $200,000 Indian art project for the new international airport being built on an old Indian meeting ground to the Western Indian Chamber so they could ensure appropriate and authentic Indian artists did the work.
The Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, concerned about the First Amendment rights of artists like Rorex, wants to bring all sides together in search of a compromise. Sen. Jeff Bingaman, D-N.M., wants to amend the law, limiting its application to traditional crafts associated with particular tribes, like Navajo rugs and Zuni jewelry. Campbell says the law as is should be given a chance to work.
But Richard Shiff, who directs the Center for the Study of Modernism at the University of Texas at Austin, says the act is already a working example of the law of good intentions and unintended consequences.
“It’s a total mess,” says Shiff. “It just sort of gets worse and worse even though everybody is trying to do the right thing.”