Yes, it's illegal to deal, sell in ivory within the US - in fact most of the world at this time.
But here's what I have found:
In the United States, African and Asian elephants are protected by the Endangered Species Act and the Asian and African Elephant Conservation Acts. But each year the U.S. government allows the legal import of thousands of elephant ivory objects, mostly in the form of carvings, but also as jewelry, unworked pieces, piano keys, hunting trophies, and individual tusks. Legally imported ivory was valued at an average of $164.8 million per year between 1997-2001.
Why does the ivory trade flourish in the United States? One reason is that U.S. ivory trade laws are confusing and riddled with loopholes. You may import elephant ivory classified as "antique" (more than 100 years in age) if you can produce documentation proving the ivory's age.
You may import elephant ivory legally acquired before February 4, 1977. You may sell domestically any African elephant ivory legally acquired and imported before June 1989. You may import ivory from an African elephant in the form of a hunting trophy, but (as of 1990) you are not allowed then to sell the ivory. Dealers who sell ivory domestically do not have to register, nor must they report sales. Even the Office of Law Enforcement of the U.S. Fish and Wildlife Service (USFWS), the agency charged with intercepting illegally imported ivory, agrees that the law regarding hunting trophies-hundreds of which are imported each year-is unclear.
Go Ahead, Try to Enforce
A USFWS agent faced with a shipment of ivory cannot tell by sight if that ivory is antique or if it comes from an elephant or a mammoth (an extinct species whose ivory may be legally traded). The ivory must be sent to the USFWS National Fish and Wildlife Forensics Testing Laboratory for testing. And even the experts at that laboratory cannot always distinguish between ivory from African or Asian elephants, or between ivory from an elephant and a mammoth.
If one of the most advanced wildlife forensics laboratories in the world has a hard time distinguishing between ivories, and thus between potentially legal or illegal items, the laws governing the U.S. ivory trade cannot be effectively enforced. If thousands of ivory items are seized and shown to be illegally imported each year, thousands more must surely escape detection.
Even if detection were not difficult, enforcement would still be stymied by the scarcity of USFWS inspectors: There are only 95 in the entire country, not enough to monitor the 110,000 ivory shipments that arrive each year.
In any case, U.S. law provides no strong deterrent to illegal ivory imports. Although a fine and prison sentence are possible in the large smuggling cases, it appears that in the vast majority of cases, the punishment is no more than the loss of the seized item.
Of Documents and Dealers
In the course of their investigation, HSUS staff encountered a surprising number of ivory sellers and buyers who either did not understand U.S. ivory laws or were comfortable breaking them. Dealers offered to forge documents to indicate an ivory carving was over 100 years in age or, in the case of an elephant tusk, had been legally imported as a trophy prior to 1989. At least one salesperson in another country offered to have fraudulent CITES documents prepared in order to export elephant ivory to the United States. However, the vast majority of ivory offered for sale in the United States appears to be sold without any documentation, legitimate or forged.
The main U.S. elephant tusk buyer is a private museum in the Mid-west. This museum operates a web site and also offers items regularly on eBay. When questioned about the law regarding the purchase of elephant tusks, the owner told undercover HSUS investigators his stratagem for avoiding being caught illegally buying post-1990 tusks: The seller will donate the elephant tusks to him, and then a minute later or before, the owner will buy a pencil from the seller for the price of the tusks. If the USFWS asks him if he bought the tusks, he will simply say that they were donated.
Those in the ivory trade know how to evade USFWS inspectors. At a workshop of ivory dealers and carvers, a participant explained that the best time to import ivory is on the weekends when USFWS agents are not working, and the best places are through small ports of entry, such as Alaska, where there are fewer USFWS agents. Participants were even advised to place small ivory items in their luggage in a certain manner to avoid detection by X-ray machines.
Enter the Internet
The Internet, particularly the U.S.-based company eBay, has provided an easy means by which ivory can be bought and sold. On eBay, anonymous people in unknown locations can buy and sell ivory without fear of prosecution. Each day, over one thousand ivory objects are offered for sale on this site. Although most ivory buyers and sellers on eBay appear to live in the United States, many offer their products from other nations. When asked, many selling ivory on eBay admitted that they didn't know the origin of the ivory they were offering for sale. Some eBay sellers offered to forge documents-usually to claim that the ivory was antique-to get around laws.
The eBay site provides guidelines regarding the sale of prohibited, questionable, and infringing items, placing responsibility for obeying the law solidly in the hands of the buyers and sellers who use the service. This area is complex, and sellers should consult with the USFWS and their state wildlife agency to ensure that the particular item involved may lawfully be sold. According to eBay, ivory from African elephants generally may be sold so long as it was lawfully imported into the United States. Wooly mammoth may be sold inside or outside the United States. Hippo ivory may be sold within the United States, but may not lawfully be imported into the United States. However, eBay does offer to check suspicious items and, when appropriate, ends auctions or warns sellers.