SENATE BILL 1023
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Lidio G. Rainaldi
AN ACT
RELATING TO CRIMES; AMENDING THE INDIAN ARTS AND CRAFTS SALES ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 30-33-1 NMSA 1978 (being Laws 1929, Chapter 33, Section 1, as amended) is amended to read:
"30-33-1. SALE OF INDIAN-MADE ARTICLES AS GENUINE.--It is unlawful to barter, trade, sell or offer for sale or trade any article represented, directly or indirectly, expressly or by implication or omission, as produced by an Indian unless the article is produced, designed or created by the labor or workmanship of an Indian."
Section 2. Section 30-33-6 NMSA 1978 (being Laws 1959, Chapter 133, Section 4, as amended) is amended to read:
"30-33-6. INQUIRY AS TO PRODUCER--DUTY OF INQUIRY--[ELECTION] REQUIREMENT TO LABEL [AUTHENTIC] NON-AUTHENTIC INDIAN ARTS AND CRAFTS.--
A. It is the duty of every person selling or offering for sale a product that is represented to be authentic Indian arts or crafts to make due inquiry of his suppliers concerning the true nature of the materials, product design and process of manufacture to determine whether the product may be lawfully represented as authentic Indian arts or crafts.
[B. Each person may elect to label or otherwise clearly and conspicuously disclose as authentic Indian arts and crafts all articles that are authentic Indian arts and crafts in accordance with the Indian Arts and Crafts Sales Act and regulations adopted pursuant to that act.]
B. It is the duty of each person, including each artist, wholesaler, jobber and retailer, who sells or offers for sale, or who barters or trades any Indian-style article that is not "authentic Indian arts and crafts" as defined in Subsection C of Section 30-33-4 NMSA 1978, including any "Indian crafted" article, to clearly and conspicuously label each and all such articles as not authentic Indian arts and crafts. Labeling may be for individual articles, or may be in groupings or collections, provided that the labeling clearly applies to all articles in the grouping or collection.
C. Consistent with the purposes of the Indian Arts and Crafts Sales Act, regulations adopted under that act may specify designations other than "authentic Indian arts and crafts", including a designation such as "Indian crafted", for authorized labeling as Indian arts and crafts."
Section 3. Section 30-33-7 NMSA 1978 (being Laws 1973, Chapter 163, Section 5, as amended) is amended to read:
"30-33-7. UNLAWFUL ACTS.--It is unlawful for any person to:
A. sell or offer for sale any products represented, directly or indirectly, expressly or by implication or omission, to be Indian handmade or authentic Indian arts and crafts unless such products are in fact Indian handmade or authentic Indian arts and crafts;
B. sell or offer for sale any products represented, directly or indirectly, expressly or by implication or omission, to be Indian crafted unless such products are in fact Indian crafted;
C. represent, directly or indirectly, expressly or by implication or omission, that any Indian arts and crafts product is made of a material, including natural material, unless it is made of that material;
D. fail to disclose both orally and in writing that any Indian arts and crafts product is made of treated material, reconstructed material or synthetic material;
E. solicit or buy for resale as authentic Indian arts and crafts any products that are known in fact not to be authentic; [or]
F. fail to clearly and conspicuously label non-authentic Indian-style articles as required by Subsection B of Section 30-33-6 NMSA 1978; or
[F.] G. prepare, disseminate or otherwise engage in any unfair or deceptive trade practice, including any false, misleading or deceptive advertising, or any unconscionable trade practice, regarding Indian arts or crafts. For the purpose of this subsection, "unfair or deceptive trade practice" and "unconscionable trade practice" mean "unfair or deceptive trade practice" and "unconscionable trade practice" as those terms are defined in Section 57-12-2 NMSA 1978."
Section 4. Section 30-33-8 NMSA 1978 (being Laws 1973, Chapter 163, Section 6, as amended) is amended to read:
"30-33-8. ENFORCEMENT BY ATTORNEY GENERAL OR DISTRICT ATTORNEY.--The attorney general or a district attorney with jurisdiction over a matter [shall] is authorized to enforce the provisions of the Indian Arts and Crafts Sales Act. The [New Mexico office of] Indian affairs department and an authorized tribal prosecutor may assist the office of the attorney general or the district attorney in determining whether the provisions of the Indian Arts and Crafts Sales Act have been or are being violated. Either the attorney general or a district attorney with jurisdiction over a matter may take action to enforce the provisions of the Indian Arts and Crafts Sales Act in either civil or criminal proceedings, or both, including actions for criminal penalties, injunctive relief, restitution, damages and civil penalties."
Section 5. Section 30-33-9 NMSA 1978 (being Laws 1977, Chapter 334, Section 6, as amended) is amended to read:
"30-33-9. VIOLATION OF ACT--PENALTIES.--
A. In an action brought by the attorney general or a district attorney for a violation under the provisions of the Indian Arts and Crafts Sales Act, the district court may order temporary or permanent injunctive relief. The district court shall order restitution and such other relief as may be necessary to redress injury to any person resulting from the violation.
B. In any action brought under this section, if the court finds that a person is willfully using or has willfully used a method, act or practice declared unlawful by the Indian Arts and Crafts Sales Act, the attorney general or district attorney, upon petition to the court, may recover, on behalf of the state of New Mexico, a civil penalty not to exceed [five hundred dollars ($500)] five thousand dollars ($5,000) per violation.
C. Any person willfully and knowingly violating the provisions of the Indian Arts and Crafts Sales Act is guilty of a petty misdemeanor when the violation involves property valued at less than [two thousand five hundred dollars ($2,500)] one hundred dollars ($100) and shall be punished by a fine of not less than one hundred dollars ($l00) per violation per day, up to a maximum fine of five hundred dollars ($500), or by imprisonment in the county jail for a definite term not to exceed six months, or both.
D. Any person willfully and knowingly violating the provisions of the Indian Arts and Crafts Sales Act is guilty of a misdemeanor when the violation involves property valued at or in excess of [two thousand five hundred dollars ($2,500)] one hundred dollars ($100) and less than [twenty thousand ($20,000)] two hundred fifty dollars ($250) and shall be punished by a fine of not less than one hundred dollars ($l00) per violation per day, up to a maximum fine of one thousand dollars ($l,000), or by imprisonment in the county jail for not more than one year, or both.
E. Any person willfully and knowingly violating the provisions of the Indian Arts and Crafts Sales Act is guilty of a fourth degree felony when the violation involves property valued at or in excess of [twenty thousand dollars ($20,000)] two hundred fifty dollars ($250) and less than two thousand five hundred dollars ($2,500) and shall be punished by a fine of not less than one hundred dollars ($100) per violation per day, up to a maximum fine of five thousand dollars ($5,000), or up to eighteen months imprisonment in the county jail, or both.
F. Any person willfully and knowingly violating the provisions of the Indian Arts and Crafts Act is guilty of a third degree felony when the violation involves property valued at or in excess of two thousand five hundred dollars ($2,500) but less than twenty thousand dollars ($20,000), and shall be punished by a fine of not less than two hundred dollars ($200) per violation per day, up to a maximum fine of five thousand dollars ($5,000), or up to three years imprisonment, or both.
G. Any person willfully and knowingly violating the provisions of the Indian Arts and Crafts Act is guilty of a second degree felony when the violation involves property valued at or in excess of twenty thousand dollars ($20,000), and shall be punished by a fine of not less than five hundred dollars ($500) per violation per day, up to a maximum fine of ten thousand dollars ($10,000), or up to nine years imprisonment, or both."
Section 6. Section 30-33-10 NMSA 1978 (being Laws 1977, Chapter 334, Section 7, as amended) is amended to read:
"30-33-10. PRIVATE RIGHT OF ACTION--DAMAGES.--Any person who suffers financial injury or damages by reason of any conduct declared in violation of the provisions of the Indian Arts and Crafts Sales Act may sue in district court. Upon a showing that that act is being violated, the court [may] shall award actual damages or the sum of one hundred dollars ($100), whichever is greater, and order injunctive relief and shall award the cost of the suit, including reasonable [attorneys'] attorney fees and the costs and fees of any expert witness whom the court determines was reasonably necessary to the plantiff's case or who testifies at trial for the plantiff. Where the court finds that the party charged with violating the Indian Arts and Crafts Sales Act has willfully violated that act, the court may award treble damages or the sum of three hundred dollars ($300), whichever is greater, to the party complaining of the violation."
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