For over 30 years, Peggy Fontenot has made, displayed, and sold American Indian art, often traveling the country to participate in American Indian art shows and festivals. Her specialty is hand-made beaded jewelry and cultural items, and black and white photography. She has won many awards and even had her beadwork displayed in the Smithsonian Museum for the American Indian in Washington, D.C. But in 2016, Oklahoma lawmakers enacted a new law that prohibits Peggy from describing her art in Oklahoma as American Indian-made. See, Peggy is a member of the Virginia state-recognized Patawomeck tribe, but Oklahoma’s new law only allows artists who are members of federally recognized tribes to describe their art as American Indian-made. In effect, the law prohibits Peggy from truthfully marketing and describing her art as American Indian-made. Worse still, the practical effect of the law is that Peggy cannot continue marketing, showing, or selling her art in Oklahoma, which is home to an important and thriving market for American Indian art.
Because of those restrictions on Peggy’s right to speak and earn a living, today we filed a brief in federal court in Oklahoma City explaining the many ways Oklahoma’s new law violates the U.S. Constitution.
First, the Oklahoma law only applies when artists represent art as being “American Indian-made,” and it singles out members of federally recognized tribes for favor. As a result, the law violates the First Amendment because it is a content- and speaker-based restriction on speech that cannot survive strict scrutiny. Even under the less-stringent scrutiny for commercial speech, the law is unconstitutional because the State has less-restrictive means of addressing its stated objectives and it possesses no evidence that anyone has actually complained about fraudulent artists in at least 11 years. For example, the State could require artists to disclose what tribe they are a member of, and whether their tribe is state- or federally-recognized. With less-restrictive options like that, the State can’t ban Peggy’s speech.
Second, the law violates the Supremacy Clause of the U.S. Constitution because it undermines a federal law that specifically allows artists who are members of state-recognized tribes and certified Indian artisans to market their art as American Indian-made. In other words, because Congress purposefully defined American Indian artists so broadly, Oklahoma cannot enact its own law that is in direct conflict with federal law.
Third, the state law violates the dormant Commerce Clause because it discriminates against and excessively burdens interstate commerce in American Indian art by favoring in-state American Indian artists at the expense of out-of-state artists. The chief of the federally recognized Cherokee Nation is on record stating that Oklahoma Cherokee artists will receive a “direct economic benefit” from the law, and the authors of the law are even members of the Cherokee Nation. Therefore, it is clear that federally recognized tribes in Oklahoma have used the lawmaking process to protect artists in Oklahoma who are members of their own tribes from having to compete against artists like Peggy, who are from out-of-state and are members of state-recognized tribes.
And fourth, the state law violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment because it irrationally discriminates against artists who are members of state-recognized tribes and certified Indian artisans for the benefit of artists who are members of federally recognized tribes, and it irrationally burdens Peggy’s right to earn a living.
We are confident that the Court will see this law for what it is: a naked attempt to prevent artists like Peggy from showing and selling their art in Oklahoma to the benefit of Oklahoma artists who are members of politically powerful tribes.