Published in the Missourian Match 15, 2018.
As noted in the Missourian on Feb. 11, 2018, the Missouri House of Representatives is considering a bill, HB 1384, that would drastically restrict who can market art in Missouri as American Indian-made. If enacted, the law would prohibit a multitude of American Indian artists from describing their art as it is, including the numerous members of state-recognized tribes and certified tribal artisans, among others.
In 2016, Oklahoma enacted a nearly identical law that is being challenged in federal court as unconstitutional. The plaintiff in that case, award-winning photographer and artist Peggy Fontenot, is a member of the Virginia-recognized Patawomeck Tribe and is a certified artisan of the federally recognized Potawatomi Nation.
Despite her qualifications and her sterling reputation as an artist — her work has even been offered for sale in the Smithsonian’s National Museum of the American Indian — Oklahoma banned artists like Ms. Fontenot from marketing or describing their art as American Indian-made solely because they are not members of federally recognized tribes.
As a result, Ms. Fontenot has sued to protect her right to truthfully describe her art and to earn a living.
It is plainly evident, then, that the Missouri legislature’s attempt to address fraud and misrepresentations in the marketplace for American Indian art goes too far. It also violates the U.S. Constitution.
The First Amendment protects the right of artists to market and describe their art. When the government picks and chooses what can be said or who may do the speaking, the law must be narrowly tailored to achieve a compelling governmental interest.
Missouri is perfectly capable of addressing problems related to false advertising of American Indian art: It can simply prohibit instances of actual fraud rather than prohibiting vast amounts of American Indian artists from speaking truthfully.
In fact, Missouri already has a law on the books to accomplish just that. Missouri’s truth-in-advertising law contains substantial penalties for anyone who misrepresents a product, including American Indian art. Indeed, the penalties exceed those provided for under HB 1384.
Granted, there is the issue of how one defines who is an American Indian, and the answer to this question is complicated and rife with controversy.
Nevertheless, when Congress was faced with the issue when it enacted the federal Indian Arts and Crafts Act in 1990 to provide federal protections for American Indian artists from fraudulent and misleading art, Congress chose to include members of state-recognized tribes and certified artisans in addition to members of federally recognized tribes. Because of Congress’s deliberate choice to define American Indian artists more broadly than HB 1384, the bill also runs afoul of the Constitution’s Supremacy Clause, which prohibits states from enacting laws that directly conflict with federal laws.
If the Missouri legislature wishes to protect American Indian artists from competing with fraudsters, then it should at least explain why Missouri’s existing truth-in-advertising law and the federal law are insufficient.
Furthermore, if a lack of local enforcement is a concern, then perhaps the legislature should instead consider a state version of the federal law. Either way, it seems imprudent to continue pushing for a law that is nearly identical to one currently being challenged in federal court as unconstitutional.
Unless the above concerns are addressed by supporters of HB 1384, one can’t help but see the bill as merely protecting artists who are members of politically connected tribes from having to compete with American Indian artists who happen to belong to the “wrong” tribes. Not only is that unjust, it is also unconstitutional.
Caleb R. Trotter is an attorney at Pacific Legal Foundation. He has the honor of representing Ms. Fontenot in her challenge to Oklahoma’s American Indian Arts and Crafts Sales Act.