November 22, 2016

PLF challenges Oklahoma law that stifles American Indian artist's speech and right to earn a living

By Caleb R. Trotter Attorney
Peggy Fontenot. By Brian Feulner.

Peggy Fontenot is an award-winning American Indian photographer and artist, specializing in hand-made beaded jewelry and cultural items. For more than 30 years, Ms. Fontenot has traveled the country to show and sell her American Indian art. Because of Oklahoma’s deep connections with American Indian history and culture, Ms. Fontenot has regularly participated in art shows and festivals in the state.

In the summer of 2016, the Oklahoma Legislature passed a law that prohibits Ms. Fontenot from describing or marketing her art as “American Indian-made.” At the urging of large, politically connected tribes, the legislature modified the definition of “Indian tribe.” Now, only members of federally recognized tribes may market and describe their art as “American Indian-made.” Because this law violates Ms. Fontenot’s constitutional rights, today she joined with PLF to challenge the law with a federal constitutional lawsuit against the Attorney General of Oklahoma.

Under a prior version of Oklahoma law, all American Indians who were members of tribes recognized by either the federal or a state government were able to market and describe their art as American Indian. That all changed this summer. The problem for Ms. Fontenot is that she is a member of the Patawomeck—a Virginia state-recognized tribe. The amended version of the law forbids people like Ms. Fontenot, who belong to a state-recognized tribe, from marketing their art as “American Indian-made.” Being unable to truthfully market her art puts Ms. Fontenot’s livelihood as an artist at risk.

Fortunately for Ms. Fontenot, the First Amendment to the United States Constitution prohibits the government from restricting speech based on its content or the identity of the speaker. Furthermore, since Oklahoma’s law also impermissibly burdens interstate commerce, conflicts with federal law, arbitrarily discriminates, and violates Ms. Fontenot’s right to earn a living, it fails to pass constitutional muster many times over.

The rights to engage in free speech and the occupation of one’s choice without unnecessary governmental interference are some of the most cherished rights protected by the Constitution. Ms. Fontenot seeks to vindicate not only her own rights, but the rights of all American Indian artists in challenging Oklahoma’s misguided law.

For more info on the case:

Read the Complaint, a Litigation Backgrounder, and view a short case video.

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Fontenot v. Hunter, Attorney General of Oklahoma

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.

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