Fontenot v. Hunter, Attorney General of Oklahoma

A state cannot prevent truthful marketing of art as “American Indian-made.”

Cases > Freedom of Speech and Association > Fontenot v. Hunter, Attorney General of Oklahoma
Case Status: Won: Victory in District Court

Peggy Fontenot, a member of Virginia’s Patawomeck tribe, sells “American Indian-made” photographic art and jewelry nationwide. She regularly sold her art at shows and festivals in Oklahoma until that state passed a law in 2016 that allows only members of federally-recognized tribes to market and describe their art as “American Indian-made.” Because the Patawomeck tribe is recognized by a state rather than the federal government, Oklahoma forbids her from using the truthful description of her art that she uses in every other state. This arbitrary discrimination unconstitutionally violates Ms. Fontenot’s right to free speech and the right to earn a living.

Peggy Fontenot is an award-winning American Indian photographer and artist, specializing in hand-made beaded jewelry and cultural items. A member of Virginia’s Patawomeck tribe, she has made her living for 30 years traveling the country to show and sell her American Indian art. She regularly participated in Oklahoma art festivals until local, politically-connected tribes convinced the state legislature to restrict the definition of “Indian tribe” to include only those tribes recognized by the federal government. The restriction was ostensibly to prevent the marketing and sale of art fraudulently described as “American Indian-made.” However, as a result of this law, Ms. Fontenot – a legitimate member of a state-recognized tribe – may no longer truthfully describe her art as “American Indian-made” in the state of Oklahoma.

Instead of forthrightly describing her heritage as a member of the Patawomeck tribe, she may only describe her art generically, omitting material facts about her identity and the culturally-derived style of her art. Aside from the legal penalties she would incur by speaking truthfully, Ms. Fontenot is effectively precluded from participation in the Oklahoma American Indian art market. She is not alone: two-thirds of the categories of American Indian artists are unwelcome in Oklahoma because their tribes are not among those that are federally recognized.

PLF represents Ms. Fontenot in her lawsuit filed in the federal district court in Oklahoma City, challenging the law as a violation of her First Amendment rights, as an unconstitutional burden on interstate commerce, and as an arbitrary infringement on her constitutional right to earn a living.

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What’s at stake?

  • The First Amendment prohibits the government from restricting truthful speech based on its content or the identity of the speaker. Oklahoma unconstitutionally censors truthful speech solely because the speaker is a member of a state-recognized tribe rather than a federally-recognized tribe.
  • The Oklahoma law prevents that state’s art buyers from receiving truthful information from disfavored American Indian artists and dissuades the disfavored artists from entering the Oklahoma market at all, to the detriment of the artists’ livelihoods and the customers deprived of their work.

Case Timeline

Fontenot v. Hunter, Attorney General of Oklahoma Documents 1-3-17

January 03, 2017 Download

Fontenot v. Hunter, Attorney General of Oklahoma Documents 11-22-16

November 22, 2016 Download

Fontenot v. Hunter, Attorney General of Oklahoma Documents 11-22-16 (2)

November 22, 2016 Download

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