January 8, 2017

Why won’t Oklahoma let American Indian artists say they’re American Indian artists?

By Caleb R. Trotter Attorney

For over 30 years, Peggy Fontenot has sold her beadwork and photographs at American Indian art shows across the country. But this year, at the behest of politically connected tribes, Oklahoma passed a law that prohibits anyone who is not a member of a federally recognized tribe from marketing their art as “American Indian-made.” This “Indian Arts and Crafts Sales Act” excludes countless native people who are members of tribes that are recognized by states, but not by the federal government. Peggy, for example, belongs to the Patawomeck tribe — one of 11 tribes recognized by the state of Virginia. For Peggy, and artists from scores of other tribes that are recognized by states but not the federal government, Oklahoma’s anti-competitive law means they are effectively shut out of a big piece of the American Indian art market.

Peggy lives in Santa Monica, California, but she earns a living by showing and selling her artwork in American Indian museums and festivals nationwide— including the Smithsonian’s National Museum of the American Indian in Washington. Peggy regularly travels to Oklahoma to participate in its thriving American Indian art market. Due to the state’s deep connections with Native history and culture, some of the biggest and most prestigious American Indian art shows take place in the state. Just last year Peggy took third place at the renowned Red Earth Pow Wow in Oklahoma City. But Oklahoma’s new law means she can no longer call her art “American Indian” in the state, effectively prohibiting her from participating in the state’s many festivals.

“I was born an American Indian,” says Peggy. “I’ve always been an American Indian. And I’ve always identified as such.” For Peggy, this native identity and her art are inseparable. Her photographs use hand-developed, black and white images of native people to celebrate their culture. These striking photos will appear as part of the Language Conservancy’s “Last Native Speakers” project — a traveling exhibit featuring images of American Indians who are the last fluent speakers of their tribe’s language. Both her photography and her intricate beadwork have earned important awards, and museums and cultural centers frequently ask her to teach classes on traditional beading techniques.

Because of the close relationship between her identity and her art, it’s often necessary for Peggy to explain her heritage when discussing her art with her customers. But under the Oklahoma law, telling her customers that her art is “Indian made” will bring fines or even jail time. Because Peggy makes a living through her art, the Oklahoma law is a huge hit to both her freedom of expression and her livelihood.

That’s why Peggy recently filed a lawsuit in federal court in Oklahoma, arguing that the law violates her constitutional rights to free speech and to earn a living free of irrational government restriction. Under the First Amendment, government can’t single out speakers for censorship based on their identity. And under the Fourteenth Amendment, no state may restrict an individual’s right to earn a living unless it has a legitimate reason for doing so, like protecting public health or safety. Discriminating against some American Indians so that others have a greater share of Oklahoma’s art market is not a reason permitted by the Constitution.

Oklahoma’s law stands in stark contrast to an analogous federal law, called the Federal Indian Arts and Crafts Act of 1990. Under that law, a wide array of American Indians can truthfully label their art “American Indian-made.” In addition to members of federally recognized tribes, members of state-recognized tribes like Peggy, and artists certified by Indian tribes, can describe their art as “American Indian.” The Oklahoma law deprives two of those three groups of that same privilege, and those artists who are left out risk fines and jail time just for calling their art what it is.

Though she brought the lawsuit on behalf of herself, the outcome will affect Native artists across the country. “Under the Oklahoma law, two-thirds of those who identify as Indian artists under the provisions of federal law are excluded. So not just my rights are being limited,” says Peggy. “This lawsuit is about defending the rights of many other artists as well. It’s a bad law… an unconstitutional law.”

Anastasia Boden and Caleb Trotter are attorneys with Pacific Legal Foundation, representing Peggy Fontenot in her civil rights lawsuit challenging Oklahoma’s Indian Arts and Crafts Sales Act.

Published by Tulsa World

learn more about

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.

Read more

What to read next