American Indian artist challenges Oklahoma law that silences her artistic speech

OKLAHOMA CITY, OKLAHOMA; November 22, 2016: Award-winning American Indian photographer and artist Peggy Fontenot today challenged a new Oklahoma law that violates her constitutional rights to free speech and to earn a living by prohibiting her from truthfully describing her work as “American Indian-made.”

Her lawsuit targets Oklahoma’s American Indian Arts and Crafts Sales Act, which prohibits American Indian artists from labeling their work as “American Indian” unless they are members of specified tribes that enjoy the state’s favor.

In essence, Oklahoma is picking and choosing which artists’ rights to respect depending on their tribal membership.  Ms. Fontenot’s tribe, the Patawomeck, is excluded — even though it is a historic tribe that welcomed the first English settlers in Virginia, and was visited by Captain John Smith in 1608.

In her constitutional civil-rights lawsuit, filed today in U.S. District Court in Oklahoma City, Ms. Fontenot is represented, free of charge, by attorneys with Pacific Legal Foundation.  Donor-supported PLF is a watchdog organization that litigates nationwide for limited government and individual rights.  Also assisting is attorney Amber Godfrey, of Oklahoma City, as local counsel.

“Peggy Fontenot has been denied basic freedoms, including the freedom to speak the truth,” said PLF attorney Caleb Trotter.  “In order to protect members of politically connected tribes from competition, Oklahoma officials are forbidding Ms. Fontenot from describing and marketing her art as what it is — American Indian art created by an American Indian.  This is an affront to her identity.  But even more fundamentally, it is an assault on her constitutional rights.  The First Amendment protects her freedom to speak truthfully about herself, her heritage, and the art that she creates.  Free speech rights are fundamental for all Americans, and they don’t stop at the Oklahoma state line.”

State strips disfavored American Indian artists of First Amendment rights

Enacted earlier this year, Oklahoma’s American Indian Arts and Crafts Sales Act forbids American Indian artists who aren’t members of designated tribes from marketing their products in the Sooner State as “American Indian-made” art.  Specifically, to market works as “American Indian-made,” an artist must belong to a tribe recognized by the U.S. Bureau of Indian Affairs.

This restrictive requirement excludes scores of tribes that enjoy recognition by states — including Ms. Fontenot’s Patawomeck tribe, which is one of 11 tribes recognized by Virginia.

Notably, by denying free-speech rights to artists from state-recognized tribes, Oklahoma’s exclusionary policy contrasts dramatically with the federal Indian Arts and Crafts Act.  That federal law defines “Indian” artists to include artisans certified by tribes, and members of state- and federally- recognized tribes, and allows artists within all these categories to market their works as “American Indian-made.”

Peggy Fontenot’s art:  acclaimed nationwide

Since 1983, Peggy Fontenot has made her living as an American Indian artist.  A resident of Santa Monica, California, Ms. Fontenot has shown and sold her work throughout the United States, including regular appearances at festivals in Oklahoma.

Ms. Fontenot creates art in three different mediums:  black and white photography of American Indians; hand-crafted beaded jewelry using traditional American Indian stitching; and hand-crafted silver jewelry with semi-precious stones.

Ms. Fontenot’s art is shown and sold in galleries and museums across the country, including the Smithsonian’s National Museum of the American Indian in Washington, D.C.  Her high-profile projects include four years of producing model Kathy Ireland’s jewelry worn in Sports Illustrated photo shoots.  Ms. Fontenot has won numerous awards, and taught American Indian beading classes at several museums, schools, and American Indian cultural centers.

State robs American Indian artists of ability to earn a living

“Because of Peggy Fontenot’s success and renown as an American Indian artist, she was dismayed to learn that she may be forever banned from showing and selling her art in Oklahoma as American Indian-made as a result of Oklahoma’s new law,” said Trotter.  “So this arbitrary law robs her of important opportunities as well as of her constitutional rights.”

“I was born an American Indian,” said Ms. Fontenot.  “I’ve always been an American Indian.  And I’ve always identified as such.  Under the Oklahoma law, I’m being prohibited from doing that.  That’s unconstitutional.  It’s my right to identify with who I am.

“Under the Oklahoma law, two-thirds of those who identify as Indian artists under the provisions of federal law are excluded,” she continued.  “So not just my rights are being limited.  This lawsuit is about defending the rights of many other artists as well.  It’s a bad law, an unconstitutional law, and I’m grateful that Pacific Legal Foundation is helping me challenge it.”

In addition to challenging the statute for restricting First Amendment free speech rights, PLF’s lawsuit also targets it for unduly restricting the interstate American Indian art market, in violation of the Commerce Clause; for conflicting with the federal Indian Arts and Crafts Act, in violation of the Supremacy Clause; and for infringing on Ms. Fontenot’s right to earn a living, in violation of the Fourteenth Amendment.