Trotter, Boden: Supremacy Clause bars Oklahoma law

February 14, 2017 | By CALEB TROTTER

In an editorial on Jan. 30, The Journal Record claimed that Pacific Legal Foundation’s constitutional lawsuit on behalf of American Indian artist Peggy Fontenot “ignored” principles of federalism. On the contrary, PLF’s lawsuit seeks to vindicate federalism.

The lawsuit challenges an Oklahoma law that prohibits Fontenot and many other American Indian artists from truthfully marketing their art as “American Indian-made.” The law is unconstitutional not only because it violates the right to free speech, but it also conflicts with a federal law that explicitly allows artists like Fontenot to market their art as American Indian art. Under the doctrine of pre-emption, the U.S. Supreme Court has consistently held that states cannot enact laws that directly conflict with federal law, because the Supremacy Clause of the U.S. Constitution establishes that federal law is “the supreme Law of the Land.”

The federal Indian Arts and Crafts Act was enacted to assist American Indian artists like Fontenot develop markets for their work, and to help protect them from fraudsters. The authors of the act also recognized that it was important to broadly define “American Indian” because of the well-documented problems surrounding tribal enrollment records and histories. As a result, the federal act created three categories of authorized American Indian artists: members of federally recognized tribes, members of state-recognized tribes, and artisans certified by those tribes.

But last year, Oklahoma lawmakers undercut the federal act and prohibited all but members of federally recognized tribes from marketing their art as American Indian-made in the state. Because Oklahoma’s new law directly conflicts with Congress’ intent to create a robust American Indian art market that includes three categories of artists – not just one – the state law is pre-empted by the federal act and is unconstitutional.

It’s true that the stated intent of the Oklahoma law is to protect against untruthful advertising. But it’s also true that by the express terms of the law it does far more than that.

Peggy Fontenot is a member of the Virginia state-recognized Patawomeck tribe, but the Oklahoma law now prohibits her from telling people that her art is American Indian-made. In effect, the law forces Fontenot to refrain from telling people the truth about her heritage and her art. Thus, The Journal Record’s comparison of a major retailer like Urban Outfitters advertising mass-produced goods as “Navajo,” to a renowned American Indian artist describing her hand-made jewelry as American Indian-made, is not only inappropriate, but woefully misleading.

If state lawmakers were only concerned about protecting American Indian artists from fraudsters, they already have general truth-in-advertising laws at their disposal. The reality, however, is that Oklahoma’s new law prohibits many legitimate artists from accurately marketing their work in the state, while benefiting artists who are members of politically favored tribes.

Published by The Journal Record