Skagway shop owner found not guilty of misrepresenting Native art

Tourists look in the window of Lynch and Kennedy Dry Goods in May 2016. Photo by Emily Files.
Tourists look in the window of Lynch and Kennedy Dry Goods in May 2016. Photo by Emily Files.
A Skagway shop owner was found not guilty of misrepresenting Native produced art in federal court on Friday. Rosemary Libert owns Lynch and Kennedy Dry Goods and was the subject of an investigation by the U.S. Fish and Wildlife Service over the past couple of years. She was charged this spring after selling a piece of art to an undercover agent in 2015. In Juneau court last week, federal prosecutors tried unsuccessfully to prove that Libert knowingly deceived the agent, who was posing as a customer. KHNS’s Jillian Rogers reports.

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Libert was one of five store owners or employees in Southeast to have federal charges laid this year for misrepresenting Indian produced goods. She is the only one to go to trial.

“The irony of this case is that Ms. Libert believes very strongly in the law and she doesn’t want anyone representing non-Native art as Native art,” says Libert’s attorney Michael Satin.

“She has Native employees, she cares about Native artists, so she’ll continue to run her business and continue to sell both Native and non-Native art and to represent it properly, as she has in the past,” said Satin.

Under the Indian Arts and Crafts Act, it is illegal to offer, display or sell goods that misleadingly suggest they were made by a Native person. The artist has be a member of a tribe or “certified” by a Native tribe as a non-member artisan.

Libert’s employee Judy Gengler was also charged, but the misdemeanor was dismissed because prosecutors thought they would be better off focusing their efforts on Libert.

Using recorded exchanges between a Fish and Wildlife agent and Libert in June, 2015, the prosecution tried to show that Libert knowingly deceived what she thought was a customer. U.S. Assistant Attorney Jack Schmidt says the agent used the words Native, Eskimo and Indian when inquiring about a piece of art and Libert never clarified that the sculpture was not crafted by an Alaska Native artist. Here’s Schmidt:

“I thought that that short transaction, and those statements that were adopted by her, basically, indicated that she was … falsely suggesting that the item was in fact a true Alaska Native art piece, or an Indian piece. The jury just didn’t see it that way,” said Schmidt.

After an hour of deliberation, the 12-member jury unanimously came to the not-guilty conclusion. The trial lasted less than a full day.

Satin argued in court the recording of the conversation wasn’t reliable enough to warrant a conviction. But, perhaps more importantly, he says an email exchange between the undercover agent and Libert nine months prior to the in-person interaction in the store was proof that she was being up front about the piece of art.

“In that email, the agent pretended to be a costumer and asked her specifically if the artist was or was not Native, and Ms. Libert very clearly and explicitly said that the artist was not Native,” Satin says. “This is the same artist about whom the agent sought to purchase a piece of art nine months later.”

The agent bought the piece for just over $1,100.

Prosecutor Schmidt says Libert had plenty of opportunities on the day of the transaction to “clarify or correct” that the piece was not made by a Native artist.

The art in question was a sculpture of the Native blanket toss done by a Cambodian artist who lives in Juneau.

Pawning art off as the work of a Native artist is a bigger problem in Southeast than elsewhere in the state, Schmidt says, because of the abundance of cruise ship visitors.

“Just because we lost one case, I don’t think we did it in vain. I think that there was a purpose behind it and that is to get business owners in this type of industry to comply with the law and be truthful with customers about what they’re selling,” says Schmidt.

Defense attorney Satin says it’s “a shame” that Libert’s reputation might have taken a hit over this.

“Hopefully people will realize that she has been vindicated, that she is not trying to misrepresent artists at all, that she’s a good person trying to just run a small business the right way.”

Two Juneau gift shop owners took plea deals and agreed to pay fines, while a third store owner in Ketchikan is in the process of making a plea deal to avoid a trial.

Calls to Libert were not returned by press time.