Victory in Oklahoma

Nearly three years ago, Peggy Fontenot learned that the Oklahoma legislature was considering a bill that would redefine who an American Indian artist is. If the bill were to pass, only those who are members of federally recognized tribes would be able to market their art in Oklahoma as American Indian-made. This was a big problem for Peggy, and could put her livelihood at risk.

See, Peggy is a member of the Virginia state-recognized Patawomeck tribe, and is certified as an artisan by the federally recognized Potawatomi, but she is not a member of a federally recognized tribe. Because of Oklahoma’s history, the market for American Indian art there is strong, and as an award-winning artist Peggy routinely sells her art in Oklahoma and travels there to participate in various shows and markets.

Unfortunately, that law passed in 2016. But shortly thereafter, and with the help of Pacific Legal Foundation, Peggy challenged the law in federal court in Oklahoma City. Peggy’s primary legal complaints were that the law impermissibly infringed on her First Amendment free speech rights, and that the state law unconstitutionally conflicted with the federal Indian Arts and Crafts Act. Furthermore, throughout the process of the state law being enacted, it became abundantly clear that the law was nothing more than an attempt to protect members of politically connected tribes from having to compete with other artists.

Yesterday, Peggy won. The court ruled that because Congress intended for the market for American Indian art in the United States to include artists from federally and state-recognized tribes, as well as certified artisans, then states like Oklahoma cannot make their own laws to exclude those artists. In other words, the Constitution’s Supremacy Clause prohibits states from enacting laws that get in the way of fulfilling the purpose of federal laws.

This is a great victory for Peggy, and a stern rebuke to state legislatures that would abuse their lawmaking authority to favor politically connected groups. Now Peggy can get back to doing what she does so well: creating art. Congratulations, Peggy!